Pickering Fishery Association in the Court of Appeal
On 2 April 2025, the Court of Appeal (Sir Keith Lindblom – Senior President of Tribunals, Lord Justice Fraser and Lord Justice Holgate) handed down judgment in the case of Secretary of State for Environment, Food and Rural Affairs v R (Pickering Fishery Association) [2025] EWCA Civ 378. The Court dismissed the appeal brought by the Secretary of State for DEFRA and upheld the determination of Lieven J ([2023] EWHC 2918 (Admin); [2024] PTSR 315) that the approach taken by DEFRA and the Environment Agency to the preparation and approval of River Basin Management Plans is unlawful.
This is a landmark decision, providing a proper legal interpretation of the provisions of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (“the WFDR 2017”) with potentially far-reaching implications, for every river in the country.
The key issue is that the current River Basin Management Plans (RBMP’s), as a few of you who have tried to read them will know, are written at such a high level they are a ‘Yes Minister’ response to action. In practice they are impossible for a reader to understand what is expected in terms of any action on the ground to improve any specific river within a reasonable timeframe. These RBMP’s and the way the Government has been endorsing same has now effectively been determined as unlawful. In the original judgement (December 2023) the High Court concluded that the EA, and as approved by DEFRA, had failed to put in place specific measures to restore the Costa Beck which had been suffering from sewage discharges for many years. The case was taken by Wild Fish in conjunction with the local Pickering Fishery Association, which had been desperately trying to get something done about what once was a fine stream. The Secretary of State’s single ground of appeal was that the judge in the lower court had misinterpreted the Water Framework Directive as transposed by the WFDR 2017: the Government argued that this legislative framework was intended to be “strategic” and “high-level”; their barristers advised that a programme of measures which must be approved in relation to a river basin district was not required to specify measures for individual water bodies.
However, the judges unanimously disagreed with the Government. They concluded that the only reasonable interpretation of the legislation was that all water bodies in the ten river basin plans require a specific programme of measures to meet concerns about pollution, fish populations, and levels of ground water. The WFD imposes detailed requirements which are not all of a high-level or strategic nature. It envisages, for each water body, an integrated approach involving as assessment of its characteristics and issues, specific water policy objectives, and a programme of measures designed to achieve those water body specific objectives. The Judgement means that although integrated water management would be set at the level of river basin districts for administrative purposes, that integration would also include environmental objectives and measures identified at water body level. It recognised that the nature of the objectives and measures would vary within a river basin.
The EA has failed to take firm action consistently over the need to curb the polluters and has been under-resourced as well. As public opinion has swung behind the need to clear up the pollution of our rivers it is now clear that the previous administration failed to put in place the proper plans upon which action to improve our waters might have been based.
Personally, I find the actions of the current Government in the context of this appeal unworthy and disheartening. It could have accepted the High Court judgment of December 2023 and told DEFRA’s civil servants that a revolution in terms of the RBMP’s was needed. However, instead it forced Wild Fish and the Pickering Fishery Association off to the Court of Appeal effectively sitting on their hands and delaying what now needs to be done.
[My thanks to Wild Fish and the information posted on its website, the May edition of Trout and Salmon for the article at page 9 and the detailed analysis of the case by Max Millington of Cornerstone Barristers dated 25 April 2025. The Club ,rather unusually, donated a sum of £250 to the Wild Fish fighting fund for this action as it was obviously critically important to fishermen everywhere.].