High court dismisses application that Secretary of State for Environment did not set out Diffuse Water Pollution Plans ‘as soon as is reasonably practicable’.


Re: R (WWF-UK and Ors) v Secretary of State for Environment Food and Rural Affairs and Ors [2021] EWHC 1870 (Admin)

In the original claim, the Claimants applied for judicial review of the Defendants’ failure to comply with the obligations of Directive 2000/60/EC, known as the Water Framework Directive (“WFD”), for protected areas, in particular, by not making orders for Water Protection Zones (“WPZs”).

Permission to apply for judicial review was granted on the papers by Stewart J. on 18 August 2015 and a Consent Order was given on 27 November 2015 including a schedule which stated that the results of the Defendants’ evaluation of sites “will be set out as soon as reasonably practicable in the Diffuse Water Pollution Plans (“DWPP”) and/or Site Improvement Plans as appropriate for each site, as amended from time to time”. In this hearing, the Claimants filed an application notice for a declaration that “the Defendants are in breach of the Schedule to the CO dated 27 November 2015”.

Held: This application is dismissed. The court concludes that the Defendants have complied with the obligation in the Schedule to the CO to set out the results of their site evaluations in DWPPs as soon as reasonably practicable, given the circumstances.   In considering whether or not the Defendants are in breach of the Schedule to the CO, it is important to bear in mind that the Schedule did not contain any time limits, or even time estimates.

Furthermore, it is legitimate to take into account the following factors which, on the evidence, have delayed the production of DWPPs.  First, the scale and complexity of the task was greater than expected. Second, additional funding was not made available for the programme, and so work on the DWPPs has to compete for resources with a wide range of other important functions which are the responsibility of the Second Defendant and Natural England.  Third, there were significant reductions to the Second Defendant’s budget, and there were reductions and restrictions in Natural England’s budget. Fourth, following the referendum, the Defendants and Natural England were required to divert their time and resources to preparing for EU Exit. Fifth, the COVID-19 pandemic required Defra to provide support for the Government’s emergency response and to assist the farming, water and other sectors affected by the pandemic.

Additionally, the Court commented on the use of Tomlin orders in claims for judicial review. Specifically, Tomlin orders are less common in public law claims than in private law claims, but they are not unknown. Such orders are enforceable against public authorities and, by agreeing to the terms in such orders, public authorities are not impermissibly binding themselves in the exercise of their discretion.

David Wolfe QC was involved in this case.