Environment – Protection – Pollution – Claimant environmental charity applying for judicial review of defendant’s approach to enforcing Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 – Whether defendant failing lawfully to enforce law nationally – Whether defendant in breach of regulation 9(3) of Conservation of Habitats and Species Regulations 2017 – Application dismissed
The claimant was a UK-based environmental charity committed to addressing the problem of river pollution caused, in particular, by agricultural and food production practices and the discharge of sewerage by water companies. Since 2021, the claimant had been campaigning to draw attention to the pollution of the River Wye.
The defendant was the agency which had specific responsibilities for environmental regulation, and in the context of this case was charged with responsibility for enforcing the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (the farming rules for water). The interested party was the government department which sponsored and developed the 2018 Regulations. The intervenor was an Employers’ Association pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992, and its objects included representing and promoting the interests of farmers and growers.
The claimant applied for judicial review: (i) challenging the legality of the approach of the defendant to the enforcement of the 2018 Regulations, both in terms of the enforcement action taken by the defendant and also the role of the statutory guidance published by the interested party pursuant to the 2018 Regulations for the purpose of guiding the defendant’s enforcement activity; and (ii) alleging a breach of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (the Habitat Regulations) by the defendant’s failure to have regard to the requirements of those regulations in undertaking its enforcement activity.
Held: The application was dismissed.
(1) The correct interpretation of regulation 4(1)(a)(i) of the 2018 Regulations was that the application of organic manure or manufactured fertiliser should be planned so as not to exceed the needs of the soil and crop on the land at the time of the application.
(2) A policymaker was entitled to express a policy in unqualified terms and it was not required to spell out as a “legal fact” that the application of that policy would allow for the possibility of exceptions. Further, the exercise of a discretionary power required the decision maker to bring their mind to bear on every case and not blindly follow a pre-existing policy without considering whether or not there was material at hand which might justify an exception to that policy. Whilst any law enacted to restrict or regulate a particular activity would be ineffective unless it was enforced, particular care needed to be taken by any court faced with a challenge in relation to decisions respecting prosecution or enforcement of that regulation. A significant margin of discretion was given to prosecutors when exercising the discretion to prosecute entrusted to them by parliament: Secretary of State for Communities and Local Government v West Berkshire District Council [2016] EWCA Civ 441; [2016] PLSCS 137 considered.
It was not open to a regulator to say that it refused to enforce the law with which it had been entrusted with responsibility by parliament. It was open to a regulator to have a policy in relation to how it would go about enforcing the regulatory requirements for which it had responsibility. Having a policy was very likely to amount to good practice, and in going about its regulatory activities, in accordance with public law principles, the regulator would have regard to and apply its adopted policy unless, having scrutinised the particular circumstances of the case, there was good reason for departing from it.
It followed that the regulator had a discretion to exercise in respect of ensuring compliance in each case, meaning that there might be a range of different acceptable or reasonable ways in which compliance could ultimately be secured. In considering the regulator’s approach to the exercise of discretion, the court would afford a broad margin of judgment given the responsibility for enforcement provided by parliament and the expertise of the regulatory authority in the area which it had been entrusted to supervise: R (SSE Generation Ltd) v Gas and Electricity Markets Authority [2022] EWCA Civ 1472, [2022] 4 WLR 115 considered.
(3) In the present case it was clear that the defendant was intent upon enforcing the 2018 Regulations, and had set out a clear and proportionate approach to undertaking its enforcement activities in its “Enforcement and Sanctions policy”. There was no dispute that in principle that policy provided an appropriate and proportionate approach to enforcing environmental control including the provisions of the 2018 Regulations. The key point was that the principles set out in the defendant’s policies and procedures were designed to ensure that ultimately compliance with the regulations as interpreted by the defendant was achieved.
In accordance with the legal principles there was clearly the need for the exercise of expert judgment in determining the correct response to identified breaches of the 2018 Regulations. Whilst the inconsistencies of interpretation between the defendant’s approach and the contents of the statutory guidance was not ideal, bearing in mind the way in which the defendant’s policies and its own guidance operated, the court was not satisfied that that difference had led to any misdirection or illegality in the defendant’s approach.
(4) The claimant’s contention that there had been a breach of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 was rejected. Phosphate pollution in the River Wye was an issue which involved a matrix of competent authorities with overlapping regulatory responsibilities relevant to the discharge of the requirements under the Habitats Regulations. The Wye Special Area of Conservation had been a clear focus of investment in enforcement activity and it could not be said that the defendant was failing in its duties under regulation 9(3).
The evidence demonstrated clearly that regard was being had to the Habitats Regulations. Overall, an approach was currently being taken which properly accounted for the specific requirements created by regulation 9(3), and all the competent authorities had regard to the requirements of the regulations and were playing their part in the collective efforts being undertaken through the nutrient management plan: R (on the application of Harris) v Environment Agency [2022] EWHC 2264 (Admin); [2022] PLSCS 153; [2022] PTSR 1751 distinguished.
David Wolfe KC and Peter Lockley (instructed by Leigh Day) appeared for the claimant; Charles Streeten (instructed by the Environment Agency Legal Department) appeared for the defendant; Ned Westaway (instructed by the Government Legal Department) appeared for the interested party; Hugh Mercer KC and Naomi Hart (instructed by the National Farmers’ Union) appeared for the intervenor.
Eileen O’Grady, barrister
Read a transcript of R (on the application of River Action UK) v Environment Agency
