The Claimant, River Action, is an NGO whose objectives include addressing river pollution across the UK. A particular focus of its campaigning activities has been in relation to the River Wye. It brought a judicial review challenging the EA’s approach to enforcing the Farming Rules for Water, alleging that the EA was failing lawfully to enforce the law nationally, in part as a result of Statutory Guidance issued by the Secretary of State for Environment, as well as that its approach to the River Wye was in breach of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). 

In addition, the National Farmers’ Union (NFU) intervened to make submissions on the proper interpretation of the Farming Rules for Water. In that regard, the EA’s interpretation of the Regulations differed from that of the Secretary of State (whose position was supported by the NFU).

Following a two-day hearing, in a judgment handed down today, the High Court has:

(1)    Accepted the EA’s interpretation of the Farming Rules for Water, rejecting the alternative construction put forward by the NFU and the Secretary of State (paras. 104 – 113).

(2)    Upheld the EA’s approach to the enforcement of the Farming Rules for Water, dismissing River Action’s allegation of a failure to enforce the law in accordance with the line of cases stemming from R (Blackburn) v Commissioner of Police of the Metropolis [1968] QB 118, emphasising that a regulator has a discretion to exercise in ensuring compliance with the law, and explaining that the court will afford regulatory authorities a broad margin of judgment in the exercise of that discretion (paras. 119 – 134).

(3)    Rejected River Action’s allegation that there had been a breach of Regulation 9(3) of the Habitats Regulations, distinguishing R (Harris) v Environment Agency [2022] EWHC 2264 on the ground that, unlike in relation to the abstraction licensing at issue in Harris, the issue of phosphate pollution in the River Wye was one where a matrix of competent authorities have overlapping regulatory responsibilities relevant to the discharge of the requirements under the Habitats Regulations. In circumstances where the Wye SAC had been “a clear focus of investment in enforcement activity” it could not be said that the EA was failing in its duties under regulation 9(3) of the Habitats Regulations (paras. 135 – 144).

The case will be of considerable interest to regulators, on the exercise of whose enforcement functions para. 126 of the judgment identifies the following principles:

(1)    It is not open to a regulator to say that it refuses to enforce the law with which it has been entrusted with responsibility by Parliament. 

(2)    It is open to a regulator to have a policy in relation to how it will go about enforcing the regulatory requirements for which it has responsibility. Having a policy is very likely to amount to good practice, and in going about its regulatory activities, in accordance with public law principles, the regulator will have regard to and apply its adopted policy unless, having scrutinised the particular circumstances of the case, there is good reason for departing from it. 

(3)    The regulator has a discretion to exercise in respect of ensuring compliance in each case, meaning that there may be a range of different acceptable or reasonable ways in which compliance can ultimately be secured. 

(4)    In considering the regulator’s approach to this exercise of discretion the court will afford a broad margin of judgment given the responsibility for enforcement provided by Parliament and the expertise of the regulatory authority in the area which it has been entrusted to supervise.

In addition, the case is of importance in understanding the duty under regulation 9(3) of the Habitats Regulations. In particular, its effect is to clarify the scope and fact specific nature of the judgment in Harris. Following the decision in River Action, a breach of regulation 9(3) cannot be seen at the automatic, even where all parties acknowledge there have been adverse effects upon the favourable conservation status of an SAC. Rather, what is required is an analysis of the specific statutory role played by the competent authority, how that fits within the overall regulatory framework, and the actions being taken by the contentment authority in question to address the issue identified.

A copy of the judgment is available here.

Press coverage from the BBC is here and from Sky is here.

Charles Streeten appeared for the successful Defendant, instructed by Huw Williams of the Environment Agency.

Ned Westaway appeared for the Interested Party, the Secretary of State for Environment, Food and Rural Affairs, instructed by GLD.