Wild Justice will press on with legal challenge to Ofwat’s failure to take action over untreated sewage in rivers

The environmental campaign group will apply for permission to appeal following the refusal of permission to proceed with a judicial review of Ofwat’s failure to regulate the status of sewage plants in line with its obligations under the Water Industry Act 1991. Under the Act Ofwat must monitor and enforce water and sewage companies’ actions to observe section 94(1) of the 1991 Act and Regulation 4 of the Urban Waste Water Treatment (England and Wales) Regulations 1994 (UWWT).

Wild Justice says that until its application for judicial review was filed, Ofwat took no active steps to monitor and enforce adherence to regulations which govern the release of untreated sewage into rivers and other water bodies by water and sewage companies.

In 2019 alone raw sewage was discharged into rivers across England and Wales over 20,000 times for over 1.5 million hours.

A judge who considered the application for judicial review agreed with Ofwat that the claim would not be useful since Ofwat has demonstrated that it is now taking action on monitoring and enforcement.

Ofwat had argued that a reason for refusing permission was the intervention by the Office for Environmental Protection (OEP) which is separately investigating Ofwat’s lack of enforcement action.

However, in a letter to court, the OEP made clear that any investigation on its part was not an alternative remedy to judicial review and did not suggest that permission should be refused.

It is first time OEP has intervened on a judicial review issue and Wild Justice says its comments will be a comfort to other people considering court action on environmental issues but worry that public bodies will argue that a complaint to the OEP would be just as effective.

Wild Justice says Ofwat’s failure to act is having a serious impact on watercourses affected by sewage plants which do not conform with the UWWT regulations and regularly empty raw sewage into freshwater.

Ofwat has a statutory duty under the Water Industry Act 1991 to monitor and enforce water and sewage companies’ actions to observe section 94(1) of the 1991 Act and Regulation 4 of the Urban Waste Water Treatment (England and Wales) Regulations 1994 (UWWT).

Under section 94(1) of the 1991 Act sewage operators must cleanse, maintain and make provision for emptying sewage systems.

Under Regulation 4 UWWT water and sewage companies must ensure that their sewage plants are designed, operated and built to ensure sufficient performance under all normal local climatic conditions to avoid or minimise sewage overflow and discharge into watercourses. Treated waste water and sludge should be reused wherever appropriate and routes for treated waste water and sludge should minimise the adverse effects on the environment.

The Ofwat UWWT obligations are the cornerstone of ensuring that sewage treatment works are designed, built and operated so as to avoid or minimise sewage overflow and discharge into watercourses.

The obligations on Ofwat supplement, but do not duplicate, obligations imposed by environmental permits issued by the Environment Agency.

Ofwat has the power to issue enforcement orders and financial penalties to sewage companies which do not comply with the regulations. Under the 1991 Act section 27, Ofwat must actively collect information relating to compliance with water companies’ obligations; section 22A(2) gives it the power to impose a financial penalty; section 18 requires it to make an enforcement order if it is satisfied a company is not making provision for emptying sewers.

Wild Justice, led by Dr Mark Avery, Dr Ruth Tingay and Chris Packham CBE, said:

"This is very disappointing news - we believe we have a strong case - so we aren't giving up, we are revving up. We have instructed our lawyers to appeal this judgment.

“Ofwat simply asserted that it had considered all the matters we raised - but failed to provide any documentary evidence to back that up. Ofwat has claimed that it is doing something about sewage discharges - that is not the same as doing enough.

“We'd like to thank those who contributed to our crowdfunder, our friends and colleagues in Windrush Against Sewage Pollution and our brilliant legal team for getting us this far."

Leigh Day solicitors Carol Day and Ricardo Gama represent Wild Justice. Ricardo Gama said:

“It is disappointing that the court has not given our clients permission to go to a full hearing. The judge was ultimately persuaded that the very recent moves towards enforcing environmental laws against water companies were sufficient to remove the need for the court’s involvement, even though there have been decades of non-compliance. Wild Justice will appeal.”