Environmental Law News Update

What’s in my management plan?

One of the features of environmental legislation is the need for the government to write plans and strategies about how it will achieve certain targets.  How they will reach them is a matter of discretion, in which the courts will rarely interfere.  But we saw with the litigation about the Air Quality targets (culminating in R. (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28) and the Climate Change strategy (Friends of the Earth and others v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin)) that the courts are prepared to hold the public authorities to account if they don’t produce a strategy document that actually answers the questions about how the targets may be met.  Now it is the turn of water – the generic measures included in the numerous river basin management plans (RBMP) have not passed muster.  The Secretary of State was hoping that a RBMP be a strategic, high-level document setting a direction of travel for a river basin district as a whole. The Court of Appeal has rejected that interpretation, and has upheld the initial High Court decision by Lieven J in Secretary of State for Environment, Food & Rural Affairs v R. (on the application of Pickering Fishery Association) [2025] EWCA Civ 378 (2 Apr 2025).  It is also notable that the OEP used its powers to intervene, and submitted that the judgment of Lieven J was correct.

The Secretary of State argued that the outcome in the High Court was “novel and fundamentally changes operation of the scheme of the legislation”.  But it is more remarkable how we accepted that the text in the RBMP could be the same as that for every plan in the country and not be specific to any river basin or district. Whilst they provide links to maps, they do not indicate the “measures” which should form part of the programme of measures (PoM) provided for in the Regulations for each water body and river. There was a RBMP in form, but not in real substance. It did mean that no consideration has been given by the EA or by the Secretary of State as to what a compliant PoM should contain – and some tough decisions have in effect been avoided.  It is insufficient to rely on other legislation to regulate water quality, as that did not cover all the actions needed to achieve the environmental objectives.  The ripple effects of this important judgment will not be limited to the fishing association’s waters on Upper Costa Beck in North Yorkshire. Gone should be the days of cut’n’paste, and now some decisions will have to be made by the EA and included in each plan for review by the SoS that addresses each specific river.

EIA – and the limits of assessment

There is always a pitfall when you ask an expert whether something is possible – as the answer is inevitably a qualified ‘yes’.  Given enough time and resources, then engineers think they can achieve most things (even, apparently, HS2). Give me a place to stand, and I will move the world, said that early celebrity engineer, Archimedes.  What his client said in response is not recorded.

As those who followed the Supreme Court decision in Finch about the need to assess the downstream impacts of the oil that was being extracted in any EIA, the case ultimately turned on the acceptance by the defending  authorities that it was possible to assess this.  That finding of fact then led to the debate about causation and whether the combustion emissions constituted “direct or indirect … effects of the project” within the meaning of the Directive and Regulations.

There are however limits on what ‘project’ has to be assessed. The claimants in Surrey have had another go at stopping all fossil fuels extraction, only to run into the accepted limits of what has to be assessed when you are in the exploration phase – in Frack Free Balcombe Residents’ Association v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 495, 16 Apr 2025. The present proposal had to be judged on its own planning merits in the light of the relevant policies, and it was correct that the disbenefits of the production phase were not relevant to the decision on exploration alone.  The Secretary of State was entitled to rely on the permitting regime which was designed to ensure that there was no pathway for water to run off the site. It is also notable that the inspector took into account the national need in assessing the overall balance.  He referred explicitly to “the evident national need [he had] identified for continued hydrocarbon exploration and assessment in the interests of energy supply security pending ultimate transition [to] net carbon energy provision”.   In planning policy terms, the biggest hurdle turned out to be that the development would cause harm to the AONB.

In a similar way, simply asserting that an issue has been omitted does not mean that the developer will have to study it – it is still the decision of the planning authority about whether an EIA is required.  The ECJ has reminded us of this in Waltham Abbey Residents Association v An Bord Pleanála, C-41/24, on a preliminary reference regarding the construction of 123 apartments where no bat assessment had been carried out. The planning authority could still rule out, on the basis of objective evidence, the possibility that the project in question was likely to have significant effects on the environment.  If there is doubt, then it should ask the developer to provide it with additional information before deciding whether or not an EIA is necessary for that project.

Another win for the River Wye – using planning policy to impose greater controls on waste and pollution management when there is clear evidence of environmental harm.

The serious issues of water pollution from agriculture and sewerage in rivers in the Hertfordshire area are well known, and are becoming a familiar feature in environmental litigation. National Farmers’ Union v Herefordshire Council [2025] EWHC 536 (Admin) is another page in this chapter, and represents another victory for environmental activists. The NFU failed in its challenge to the lawfulness of a policy in the Minerals and Waste Local Plan (”MWLP”), which requires livestock units to demonstrate that all the wastes  generated by the proposed development will be appropriately managed both on and off-site. It also requires that all proposals that are likely to affect the Special Areas of Conservation demonstrate “at least nutrient neutrality”.

The NFU’s primary arguments were that the policy illegitimately sought to extend planning control into areas beyond its proper remit.  Lieven J held that the MWLP is not bound to restrict the scope of the Plan to “waste” as defined in the Town and Country Planning Act 1990 and the Waste Framework Directive (“WFD”).  In doing so, she relied on the overall purpose of the WFD, to reduce and prevent environmental harm. It was also relevant that the exclusion of “faecal matter” from the definition of waste in Article 2(1)(f) WFD is made expressly subject to it causing no harm to the environment. The existence of other environmental regulations in her view “beyond any doubt had failed to protect the environment from harm”, even though the NPFF advises that it should be assumed these regimes would operate effectively.  There was also  insufficient certainty as to onward use of the chicken manure, which would otherwise allow it to be classified as a by-product under the WFD.

The great significance of this case is that planning authorities will be able to impose more stringent environmental requirements upon agricultural waste, where there is evidence of environmental harm. These standards may go beyond existing environmental regulations and planning legislation if the regulatory regime is failing to operate as it should.  Furthermore, if farmers wish to avoid chicken manure and other faecal matter coming within the definition of waste, they must be able to show what it is being re-used as.

This case follows on from R (River Action) v Environment Agency and others [2024] EWHC 1279 (Admin), which also concerned the River Wye.  That looked at the interpretation of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, and held that farmers must consider the needs of the soil and crop on the land at the time of spreading the manure and fertiliser.  Farmers are now prevented from spreading too much manure on their lands which is not absorbed by the soil, but rather becomes run-off ending up in rivers.  All in all, it seems the time has truly come for agriculture practices to adapt to the growing tide in favour of river protection.