Anglian Water Services Limited have succeeded in their judicial review of the Environment Agency’s classification of a number of popular Lincolnshire bathing waters within Anglian Water’s region under the Bathing Water Quality Regulations 2013.  The bathing waters at Cleethorpes, Humberston Fitties and Ingoldmells South beaches had all formerly been classed as “excellent” but were downgraded to merely “good” after the Environment Agency included samples in their annual assessment of bathing water quality which had been taken in June 2019 at a time of torrential rain and flooding.

Approximately 2.5 times the average monthly rainfall fell from 10 to 12 June 2019 in parts of Lincolnshire and caused extensive flooding.  Around 600 homes in Wainfleet were evacuated and nearly 130 properties flooded when the River Steeping burst its banks.  The Met Office described the incident as “one of the most significant rainfall June rainfall events across Lincolnshire of the last 50+ years”.

The samples taken at the time showed highly elevated levels of E-coli and IE which were sufficiently high so as to be in the “poor” classification and therefore to have a significant impact on the beaches’ “excellent” classification.  There are provisions in the Bathing Water Quality Regulations for the Environment Agency to discount samples taken during incidents of “short term pollution” or suspend sampling during “abnormal situations” which the Environment Agency did not apply despite complaints by Anglian Water.  Anglian Water’s concerns were shared by local authorities concerned about the impact on tourism at popular holiday resorts of the downgrading in classification based on inconsistently contaminated samples.

Anglian Water maintained that Environment Agency’s classifications including the samples showing highly elevated levels of faecal contamination were legally flawed because they did not invoke the provisions in the Regulations allowing them to discount the samples in question.

Mrs Justice Thornton has upheld Anglian Water’s claim on the basis that the Environment Agency had misdirected itself in law in considering it had no discretion to take account of an “abnormal situation” in its assessment and classification of bathing water quality in circumstances where the pollution source is not known at the time, and sampling was not therefore suspended.   She held that the Environment Agency had ample authority under the Regulations to treat sampling as having been suspended during an abnormal situation when it assesses the reliability of relevant samples where it is necessary to do so to arrive at a realistic classification for the bathing water in question.

Mrs Justice Thornton’s judgment at [2020] EWHC 3544 (Admin) can be found here.

Meyric Lewis appeared for Anglian Water Services Limited instructed by their solicitor, Steve Leader