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Stricter tests now required for authorisation of projects affecting water quality

A recent decision of the Court of Justice of the European Union (dated 1 July 2015) on the EU Water Framework Directive (“WFD”) means that authorities making planning decisions / other authorities granting consents in relation to projects which could impact on water resources / quality will have to apply stricter tests before authorising those projects. Accordingly “Water Framework Directive assessments” will also need to be more robust.

Background

The WFD aims to ensure that the management of groundwater and surface water bodies is undertaken on a catchment “river basin district” basis. A “river basin management plan” must be established for each river basin district, including the relevant environmental objectives and a programme of measures intended to achieve those objectives. WFD also requires that:

  • the quality status of water bodies should be determined based on specified parameters; and that, subject to certain exceptions / derogations:
  • there should be no deterioration in the status of any water body;
  • all groundwater and surface water bodies should achieve “good status” by 2015 by progressive reduction in pollution and restoration.

In England, the legislation is implemented principally by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003. These regulations state that DEFRA and the Environment Agency (“EA”) have legal duty to exercise their functions relating to regulation of the water environment, so as to secure compliance with the WFD. By contrast all other public bodies are subject to a weaker duty to have regard to the river basin management plans when exercising their functions.

The Court judgement means that the UK will have to consider water quality issues more closely when granting consents or permits for activities that could affect surface water or groundwater quality and that all public bodies making planning / other consenting decisions with implications for water should have duties to secure compliance with the WFD.

Detail

The Court was asked two questions:

  1. whether WFD was applicable to the authorisationprocess for an individual project or whether it simply sets out meremanagement-planning objectives – in other words, was it permissible to grant a consent for a scheme that would cause deterioration to a water body, so long as, taking into account other enhancements to be made, the overall effect in the longer-term would not be a deterioration of status of that water body; and
  2. at what point is there judged to be a deterioration of the status of the water body – is this only when the water quality lowers to such an extent that the water class is lowered according to the criteria set out in WFD, or isany deterioration in the quality of the water body relevant? Under WFD, water bodies receive an overall classification but are also classified on various quality elements which go towards the determination of the overall classification. So the Court considered whether only a fall in the overall waterbody classification constituted a “deterioration” or whether a smaller fall in quality was enough to be a “deterioration in status”.

Application of WFD to individual projects

In answer to question 1, the Court held that, unless a derogation is granted, Member States are required to refuse authorisation for a project where it may cause a deterioration of the status of a water body or jeopardise the attainment of “good” status by 2015 (or the relevant date for that water body). This therefore appears to be applicable to any authorisation or consent and so would be applicable to, for example planning authorities / others granting development consents and also to consent-granting organisations such as Internal Drainage Boards. This finding of the court seems likely to mean a sharper focus on consideration of WFD issues in future decisions for individual projects which could impact on water quality.

What is a “deterioration in status”?

The Court’s ruling on question 2 was that there is a deterioration in the status of a water body as soon as the status of at least one of the quality elements set out in Annex V of WFD falls by one class, even if that fall does not result in a fall in the classification of the water body as a whole.

There are a large number of quality elements that make up both the chemical and (for surface waters) ecological status of a water body and the tables in Annex V of WFD set out the criteria for attainment of status level for each element. The judgement goes on to say that if the quality element concerned is already in the lowest class, then any deterioration of that element constitutes a “deterioration of the status” of the water body.

This interpretation of “deterioration” is much more stringent than the approach that has been adopted in many cases previously, where consideration of the classification of the waterbody as a whole had been the basis of determining whether there has been deterioration in status.

Indeed, many have argued that the approach of considering impacts on the waterbody as a whole has made WFD somewhat toothless in dealing with smaller pollution issues. This interpretation by the Court is likely to change all that.

For example, current planning guidance (para 16 of the Water Supply, Wastewater and Water Quality Planning Practice Guidance under the NPPF) states that where it is likely a proposal would have a significant adverse impact on water quality then a more detailed assessment will be required.

However, in the light of this judgment, “significant adverse effect” should perhaps instead be replaced with reference to the fall in classification of one of the quality elements of that water body. This more sensitive definition of deterioration will almost certainly mean that many projects, which would previously have required only a screening assessment of water quality impacts, will now require a more detailed assessment of potential impacts on water quality.

Hopefully, this renewed emphasis on WFD assessments will lead to some clear government guidance on what is expected in an assessment of impacts on surface and groundwater, both in terms of screening assessments and more detailed assessments.

The findings of the Court have direct effect in UK law, even if, as seems to be the case, WFD has not been correctly implemented in the UK legislation. This means that the UK courts may hold that other authorities (beyond DEFRA and EA) have a legal duty to secure the WFD objectives in England, even before any changes are made to the UK legislation.

Impacts on future development consents

Another implication of this case is likely to be a greater emphasis on the derogations to allow consents to be granted where the development could lead to a deterioration in status of the relevant water body.

However, derogations are only allowed in a narrow range of circumstances.

Derogations available include where the failure to achieve the objectives of WFD are the result of “new modifications to the physical characteristics of a surface water body” or where the failure to prevent deterioration from high status to good status is as a result of “new sustainable human development activities”.

Even these quite limited derogations are only available where further conditions are met which include that all practicable steps have been taken to mitigate adverse impacts and the works have an overriding public interest and/or the benefits of the WFD objectives are outweighed by the benefits of the works to human health, safety or sustainable development.

In addition to the Court ruling described here, the High Court has granted WWF-UK, the Angling Trust and Fish Legal permission to bring a judicial review of DEFRA and Environment Agency’s implementation of WFD to date. This challenge relates, in part, to the delay in meeting the WFD objective of “good” status of all water bodies by 2015 linked to diffuse pollution impacts.

Conclusions

Overall, these developments suggest a renewed emphasis on water quality issues by regulators in the short- to medium term. This means that impacts on water quality will need to be considered early in the project, to ensure that the necessary development consents can be secured and, if a deterioration in water status is anticipated, a robust case would need to be put together to demonstrate that the requirements for the relevant derogation have been met.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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