An environmental group seeking a judicial review against Ofwat has been granted an appeal date next week after initially being rejected by a judge in October.
Environmental advocacy group Wild Justice’s case against the regulator accuses it of failing to meet its responsibilities to regulate discharges of raw sewage under the Urban Wastewater Treatment Directive.
Next Thursday (12 January) the Court of Appeal will decide whether to grant permission for the judicial review to proceed, or uphold the High Court judgement from October when permission was refused.
Mark Avery, advocate for Wild Justice told Utility Week the organisation was optimistic the case would proceed. He said: “Most of the focus has been on what water companies do, we are focussing on what they do too but Ofwat has a legal responsibility to make sure companies’ sewage treatment works vastly reduce the frequency of this happening.”
The group, which advocates for UK wildlife conservation, launched the legal challenge against Ofwat regarding its statutory responsibilities over wastewater treatment plants in England and Wales in response to the increased sewage and pollution incidents reported in recent years.
It is challenging that the regulator has not fulfilled its duties under the Urban Wastewater Treatment Directive. Avery said: “We are seeking for the judge to agree with us that Ofwat has behaved unlawfully, and to set a task to come up with lawful actions in the future.”
Wild Justice’s approach is to identify a statutory failure by the regulator so legal action can be taken to improve the situation for the benefit of the environment.
At present, the group believes there is too much blame being shifted between Defra, The Environment Agency and Ofwat that does little to improve the health of waterways.
The group began its campaign against the water regulator via pre-action protocol letter in April 2022, setting its case against the public body, then sought permission for judicial review. This was rejected by a judge in September and the group lodged an appeal with the Court of Appeal to overturn the judge’s verdict.
Avery said the group was “hopeful but by no means certain” its appeal would be successful next week to allow Wild Justice to proceed to a judicial review. The group wants to see a judgement that agrees Ofwat has acted illegally in the past, which must be rectified. It is not however seeking a specific remedy.
An Ofwat spokesperson said: “We were pleased to see the High Court judge agreeing that Ofwat is acting to hold companies to account on their environmental performance and recognised our place within the wider regulatory framework, and we trust the Court of Appeal will take the same view. We will continue to push companies to act in the best interests of customers and the environment, and as more and better data becomes available, ensure this insight is used to translate into action. Organisations like Wild Justice are important in pressuring the sector to deliver more environmental improvements and we will continue to engage with them – the current situation is unacceptable, and we all expect to see improvements made now.”
A separate challenge has been launched against Ofwat by Wild Fish, formerly the Salmon and Trout Conservatory, which lodged a complaint with the Office for Environmental Protection (OEP). OEP attended the primary hearing to state that the complaint was entirely separate from a legal challenge such as Wild Justice’s.
Wild Justice comprises of Avery together with presenter and author Chris Packham and conservationist Dr Ruth Tingay to advocate for a better deal for UK wildlife.