Facts

The Upper Costa Beck (“UCB”) is one of the more than 1000 individual water bodies in the Humber River Basin District. It has been heavily polluted over a number of years, resulting in a decline in fish populations.

The UCB is covered by the Humber River Basin Management Plan (“HRBMP”), which was approved by the Secretary of State for Environment, Food and Rural Affairs (“SSEFRA”) on 14 December 2022.

That decision was successfully challenged via judicial review in the High Court, in a judgment of Lieven J handed down on 15 November 2023.

SSEFRA appealed that judgment, on a single ground: that Lieven J misinterpreted the EU’s Water Framework Directive (“WFD”) as transposed into national law by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (“WFDR”). The Court of Appeal dismissed the appeal on 2 April 2025.

Law

Those familiar with the WFD will know of its complexity, and the judgment, from [14]-[41], spends a considerable time parsing through the individual provisions of both the WFD and WFDR.

The key provisions for the purpose of the judgment are as follows.

By Regulation 12 of the WFDR 2017, the EA is required to prepare and submit to the Secretary of State proposals for:

a. Environmental objectives (“EOs”) for each river basin district, and

b. A Programme of Measures (“PoM”) to be applied in order to achieve those EOs.

Those EOs are defined in regulation 13 by reference to each water body within a river basin district. The EOs and PoM must be periodically reviewed, and, where appropriate, updated.

The content of RMBPs is determined by regulation 27. One requirement is that a summary of the PoM be included within the body of the Plan.

The UCB itself is classified as a “heavily modified water body” under Regulation 15. By regulations 13 and 16, the (extended) EOs for UCB are to achieve “good ecological potential” by December 2027.

Currently, the UCB’s ecological potential is only “moderate.”

Main Issue

In the High Court, Lieven J distilled the main issue at [8] as:

“whether and to what degree, the HRBMP or any other documents produced by the EA pursuant to the WFDR must set out information at the level of the individual water body, as opposed to at river basin district level, or even national level”
(emphasis added).

The information in question is what measures are going to be taken to achieve the EOs – in the case of the UCB: “good ecological potential.”

Submissions

The Secretary of State and the EA submitted that a PoM is not required to include measures for each individual water body. Both PoM and RBMPs are high-level and/or strategic documents. A PoM may contain measures which relate to the whole of a river basin district or the nation. 

SSEFRA stated the High Court decision “fundamentally changes [the] operation of the scheme of legislation,” which, until that judgment, had operated on the basis of their interpretation.

The Respondent (Pickering Fishery Association) and the Office for Environmental Protection (“the OEP”), which intervened in these proceedings, submitted that the PoM is required by law to identify measures for each water body.

Judgment

The judgment was divided into four sub-headings:

1. What do the PoM approved by the Secretary of State set out to do?
2. Is a PoM intended to be only a high-level, strategic document?
3. What is the relevance of other regimes for identifying water-body-specific measures?
4. The interpretation of the term “Programme of Measures”

1. What do the PoMs approved by the SSEFRA set out to do?

The Court of Appeal in a unanimous judgment (Sir Keith Lindblom (Senior President of Tribunals), Lord Justice Fraser and Lord Justice Holgate) found that there was a clear distinction between RBMPs and PoM in WFD and WFDR 2017; [101]-[105].

The same distinction could be found in the SSEFRA’s own River Basin Planning Guidance (2021) and the RBMPs themselves.

It was revealed in the evidence before the Court that SSEFRA had not approved any separate PoMs, despite the text of RMBPs giving that impression [109]. Indeed, it was not clear to the Court whether SSEFRA himself was aware of this fact.

Rather, only summary PoMs had been produced, as set out in each RBMP. These summary PoMs (required to be included pursuant to regulation 27 WFDR) were intended to act as standalone PoMs; [109].

The Court held PoMs and RBMPs must be prepared and approved as separate documents. A summary PoM presupposes the existence of a lawful, full PoM, which did not in fact exist. Given that only a Summary PoM had ever been produced setting out a “summary of national measures” set out in “broad categories”, which was not compliant with the requirements in the WFD and WRDR 2017, it was apparent that no consideration had been given by the EA or the SSEFRA to what a compliant PoM should contain. That was a “fundamental self-misdirection” and meant that appeal would fail on that aspect alone.

Addressing the summary PoMs themselves, the Court found that they were only focused on national/generic measures, and thereby did not provide measures targeted at individual water bodies; [122].

2. Is a PoM intended to be only a high-level, strategic document?

With regards to the overall purpose of PoMs, the Court found that there is nothing in the WFD, WFDR or in relevant policy documents to indicate that measures need only relate to national level or for a river basin district or river basin; [131].

They noted that substantial parts of the WFD impose specific, detailed requirements for water bodies. They are not of a high-level or strategic nature; [132]. The EOs required under regulation 12 WFDR are specific to individual water bodies; [133].

They further held that the WFDR involves a series of interconnected stages concerned with identifying and implementing the measures necessary to achieve the EOs for each water body. The preparation and approval of a PoM under regulation 12 serves that purpose; [134]-[140]. 

The requirements in regulation 12 for a PoM were therefore not high-level or strategic. They are specific and measurable, targeted at the level of an individual water body. They are required to achieve the EOs for each water body; [141].

The Court further addressed RBMPs. They rejected the notion that they are purely strategic or high-level plans. Rather, they may include strategic and high-level material, but they are not so limited; [144].

3. Other regimes for identifying water body specific measures

The Secretary of State submitted that his approach allowed for other regulatory regimes to deal with the need for actions on the ground as well as economic and financial factors, e.g. the Environmental Permitting (England and Wales) Regulations 2016 (“EPR”) and the Water Industry Act 1991 (“WIA”); [146].

The Court found there to be no merit in this argument: 

(1) Other legislation which any national legislature chooses to enact provides no guide to the meaning or scope of an EU Directive; [147].

(2) The WIA 1991 and the EPR 2016 do not cover all the actions needed to achieve the EOs under Article 4 and to comply with the WFD and the WFDR 2017; [148].

(3) The WFD and the WFDR 2017 also have regard to economic and financial issues; [150].

(4) Although Article 11 WFD allows a PoM to rely upon “measures following from legislation adopted at a national level”, it is insufficient for a PoM simply to rely upon the mere existence of that legislation. The document needs to explain how such legislation would be applied to a water body so as to achieve its EOs; [148].

4. The interpretation of the term “Programme of Measures”

Adopting an ordinary reading of the term PoMs, the Court found that “Programme” refers to a planned series of activities or events.

Further, “Measure” refers to a plan or course of action intended to attain some object; [151].

The Court rejected the submission of the Secretary of State and EA that EOs and PoMs are “merely aspirational”. Their objective is to achieve the appropriate status for each water body; [153] 

A natural reading of Article 11 of the WFD is that a Member State must establish a PoM at the same level as the EOs which are to be achieved, i.e. at the level of individual water bodies. The measures must either be specific to a water body or, if generic, related to the achievement of the EOs for each water body; [154]-[170]. The Court’s analysis of those provisions applies equally to the WFDR 2017; [171]

Finally, the Court stressed that the Secretary of State’s own guidance on river basin planning accords with the Court’s interpretation of the WFD and the WFDR 2017, in particular on the obligation to include water-body-specific measures in PoMs; [174]-[183].

Discussion

Both the High Court and the Court of Appeal therefore resoundingly found in favour of the Respondent’s (and OEP’s, in the Court of Appeal) interpretation of the WFD and WFDR 2017. Indeed, in several parts of the judgment, the Court is strikingly critical of the Government and the EA’s approach.

Despite both judgments providing clarity regarding the correct interpretation of the law, the increase in administrative burden on the EA in particular is stark, though one would assume that greater environmental protection would be secured by mandating specific measures for individual water bodies. There is some similarity here to the new Environmental Delivery Plans (“EDPs”) proposed under the Government’s Planning and Infrastructure Bill. For EDPs, Natural England is expected to set out conservation measures to protect and enhance environmental features of areas likely to be affected by development. That is a similarly burdensome task that will likely require increased funding – and one where the extent of the administrative burden on Natural England will also be affected by the specificity with which conservation measures must be identified. Those proposals are discussed by Michael Feeney and Esther Drabkin-Reiter here.

Indeed, compared to the present approach, whereby only Summary PoMs are produced which set broad and strategic national targets, contained within the RBMPs for each of the 12 river basin districts, the judgment of the Court of Appeal at [77] addresses what now befalls both the EA and SSEFRA:

“There are nearly 5,000 water bodies in England, 58,000 water discharge permits and 20,000 licences. There are just over 1,000 water bodies in the Humber River Basin District alone. Requiring a PoM to specify measures at the level of individual bodies would be resource intensive and would divert EA resources from “other essential duties”.”

Further, pursuant to regulation 29 WFDR, consultation will need to be carried out with the public in relation to each water body. There is now essentially a 500-fold increase in administrative burden on SSEFRA and the EA. This point was made in a submission by the SSEFRA and EA that it would be administratively unworkable to require a full PoM for each water body; [65], [75]. The Court rejected that argument at [185]-[190].

How the Government intends to comply with this newfound task remains to be seen. However, a hint can be found in the Court’s concluding remarks at [192]. They stressed that a PoM must identify a scheme of actions for each water body to achieve the EOS for that body within the relevant deadline. However, generic provisions may be used, which rely upon national legislation or policy, so long as the PoM shows how those measures relate to each individual water body and its EOs. Insofar as that is done, the level of detail to be included is a matter of judgment for the EA and SSEFRA, subject to principles of Wednesbury rationality.

Gabriel Nelson is a barrister at Francis Taylor Building specialising in environmental, planning and public law.