Judge says Government’s promise to report on protected sites is legally binding

A Judge at the High Court has ruled that a promise made by the Government in 2015 to provide reports on sensitive rivers and lakes is enforceable.

WWF, the Angling Trust and Fish Legal took Defra and the Environment Agency (EA) back to Court on 16th June for failing to publish the reports which are expected to detail the measures necessary to get sensitive rivers and lakes back to “favourable” condition after years of agricultural pollution.

In 2015, Defra and the EA had said that they would provide the reports to include their investigations and details of the steps or “measures” to reverse their decline.

However, almost six years later and with little of the work completed, the Government argued that they had “no legal obligation” to prepare the reports – even though the agreement was Court-approved.

Binding and enforceable

Mrs Justice Lang agreed with the environmental and angling groups that the promises made in 2015 were binding and enforceable. However, she said that the Government was able to take into account complexity, resources, Brexit and the Covid pandemic in deciding whether they had acted “as soon as reasonably practicable”, despite the delay. That meant that the Government was not in breach of the agreement.

Deterioration

Out of a list of 37 sites that Defra and the EA intended to report on, only five have final reports or “Diffuse Water Pollution Plans” (DWPPs). The handful of published DWPPs, including for Wensum, Lambourn, Minsmere & Walberswick and Wybunbury, show little improvement and some evidence of actual deterioration.

Meanwhile, from what little is known about the other 32 sites, there are fears of irreversible decline.

Failing rivers

Of the waters which haven’t yet had full reports carried out on them there are a number of serious concern to anglers due to their failing state. These include the Wye as well as the Yorkshire Derwent, the Derwent in Cumbria, the Eden, the Ehen, the Dee, the Camel, and the Tweed & Till.

The Wye and its tributaries are under pressure from agricultural pollution which has caused algal blooms and damage to water quality, weed growth and salmon, including spawning gravels. Salmon are a flagship species for our rivers, a quintessential fish, deeply rooted in our heritage and culture. Large Wye salmon have declined by 54-88% since the 1970s.

The Rivers Test and Itchen, two of the most famous chalkstream trout rivers in England, have been degraded by pollution from agriculture including fish farms and cress beds as well as excessive abstraction, exacerbating the effects of pollution.

Justin Neal of Fish Legal said:

“The Court has now confirmed that the agreement set out in the Consent Order in 2015 is binding on the Government. Of course, we are concerned that the Court ruled that Defra and the Environment Agency can take into account resources in what is a binding contract as this is likely to further delay the production of the reports, and resulting improvements. We will be pressing Defra and the EA to hold to its agreement.”

Mark Owen from the Angling Trust said:

“Whilst delighted that the Judge has upheld our claim that the Consent Order, and the actions required, are legally binding on the Government we are disappointed that a lack of resources allocated by Government can be used as an excuse for delay. The present state of our rivers is disgraceful and if urgent action is not taken now then further deterioration will take place. Time is not on the side of this Government to live up to its promises.”

WWF, Angling Trust and Fish Legal launched a judicial review against Defra and the EA in 2015 because of their failure to stop the damage caused to some of the most precious rivers and wetlands in England by agricultural pollution. They argued that the Government was deliberately avoiding the use of a key “measure” – Water Protection Zones (WPZs) – to protect them.

These sites need to meet stringent legal standards because of their unique characteristics and species. But despite this, they suffer from continued pollution from agriculture, including slurry and pesticides.

However, at the High Court in November 2015, WWF, the Angling Trust and Fish Legal agreed to drop the legal action in return for promises that the Environment Agency and Defra would publish reports on the sites – called Diffuse Water Pollution Plans (DWPPs) – “as soon as reasonably practicable”. These reports were meant to include details of investigations and actions to bring the sites back to “favourable status”, which could include WPZs.