Marc Willers KC of the Garden Court Environmental Law and Climate Justice Team acted for co-claimants Marine Conservation Society (MSC), Richard Haward's Oysters, and Hugo Tagholm, alongside Peter Lockley of 11KBW.
Counsel were instructed by Good Law Practice.
In this judgment, Mr Justice Holgate addressed a challenge brought by the Marine Conservation Society (MCS), Richard Haward's Oysters and Hugo Tagholm against the Government's Storm Overflow Discharge Reduction Plan (the Plan).
The claimants pursued three grounds to trial. One of the original four grounds of challenge was that the Plan was irrational because it:
(i) adopted a definition of “high priority sites” that excluded coastal areas that have been designated for their ecological sensitivity, without any coherent explanation for this choice; and;
(ii) adopted a definition of “no adverse ecological impact” that can only be applied to freshwater sites.
However, this ground of challenge was withdrawn following the government’s decision to consult the public on both the extension of the Plan to coastal and estuarine waters, and the development of an appropriate ecological standard for coastal and estuarine waters. The government has also agreed to pay the claimants’ reasonable costs incurred in advancing this ground of challenge.
Justice Holgate dismissed the remaining grounds of challenge in a recent judgment and his reasons are summarised below:
1. MCS argued that the Plan is unlawful because it fails to align with the target in the Environmental Act 2021 (EA 2021) to halt the decline in species abundance by 2030. The Judge rejected this argument, stating that while the Plan aims to reduce discharges from storm overflows, it is not required to align with the specific 2030 target of the EA 2021.
2. The claimants also argued that the State has a positive obligation to safeguard lives and protect individuals against environmental pollution and that the government’s inadequate Plan breached rights protected by Articles 2 and 8 of the European Convention on Human Rights (ECHR). RHO also argued that the the government’s failure had a negative impact on the goodwill of its business and breached its rights protected by Article 1 of protocol 1 of the ECHR. The Judge concluded that the Plan does not violate these articles and that the Secretary of State had a broad discretion in setting targets and policies.
3. All three claimants argued that the Plan breached the public trust doctrine, which, they argued, imposes a fiduciary duty of the State to protect natural resources for current and future generations. The Judge rejected this argument, citing historical cases and asserting that no common law right to pollution control or State obligation exists. He also concluded that rights of navigation and fishing do not necessarily include a right to prevent pollution. The Judge also dismissed Hugo Tagholm's assertion that there is a public right to use the foreshore or coastal waters for recreational purposes, a point which had been previously decided by earlier caselaw.