Last reviewed 4 October 2021

On 21 December 2020, the High Court gave judgement in this case where Anglian Water Services Ltd applied for judicial review of a decision by the Environment Agency in relation to the classification of bathing water.

The Facts

Anglian Water Services Ltd (AWS), the statutory water and sewerage undertaker for Lincolnshire, applied for a judicial review of a 2019 decision by the Environment Agency to classify the water quality at three beaches (beaches A, B and C) in the county as "good".

The Agency made the classifications under the Bathing Water Regulations 2013. The legislative framework protected public health by providing for the quality of bathing waters to be graded as "excellent", "good", "sufficient" or "poor".

In 2018, the Agency had classified the three beaches as "excellent". However, in downgrading the classification to "good" in 2019, it took account of water samples which showed elevated levels of faecal contamination.

AWS argued that those samples were unrepresentative of the water quality at the beaches because they had been taken during a period of heavy rainfall. It argued that the Agency should have exercised the discretion conferred on it by Regulation 14(5) of the 2013 Regulations to disregard the samples on the basis that they had been taken during a "short-term pollution" event.

Further, it argued that the classifications were invalid because the Agency had not exercised the power conferred on it by Schedule 4 of the Regulations to declare the heavy rainfall to be an "abnormal situation" and to suspend sampling for its duration.

Decision

The application for judicial review was granted.

  • Short-term pollution: Beach A — The Regulations required the Agency to notify the local authority of predicted and actual short-term pollution events. Upon the occurrence such an event, Regulation 15(b) obliged the local authority to ensure that members of the public were aware of it. Regulation 14(5) enabled the Agency to disregard water samples taken during a short-term pollution event, and the Directive linked the exercise of that discretion to the implementation of adequate management measures for such events.

    Guidance issued by the World Health Organisation (WHO) indicated that bathing water which was subject to short-term pollution would not have its classification downgraded as long as bathers were effectively discouraged from swimming during pollution events.

    The Agency's published criteria for the exercise of its discretion made it clear that if, during a pollution event, the local authority had not erected appropriate advisory or warning signage, samples taken during that event would not be disregarded.

    No such signage had been in place during the sampling in question and thus, in accordance with the published criteria, the Agency had declined to disregard the samples. The published criteria were rational and logical: beaches affected by predictable short-term pollution would not be "marked down" provided that public health was protected through the effective provision of information to bathers about the pollution. The Agency had therefore been entitled to decline to disregard the samples from beach A.

  • Short-term pollution: Beaches B and C — The Regulation 14(5) discretion could only be exercised where "relevant procedures" were in place, and the Agency was not legally obliged to put such procedures in place. In this case, the relevant procedure triggering the Regulation 14(5) discretion was a forecasting model put in place by the Agency in 2013 to predict short-term pollution events at a number of the county's beaches.

    The system was refined and applied to further beaches over the following years, but it was not until 2020 that it extended to beaches A, B and C. In 2019, it applied only to Beach A, and therefore the Agency had no power to disregard the 2019 samples from Beaches B and C. AWS had not come close to establishing that the court should trespass upon the scientific, technical and predictive judgements underlying the refinements to the model.

  • Abnormal situation — Schedule 4 of the Regulations enabled the Agency to suspend the water monitoring calendar for the duration of any "abnormal situation", which was defined by Regulation 2(1) as an event or combination of events impacting on bathing water quality, which the Agency would not expect to occur, on average, more than once every four years.

Although that definition required an exercise of judgement on the part of the Agency, an abnormal situation had to be identifiable at the time of its occurrence. Concerned that it might not always be able to form a contemporaneous assessment, the Agency required that a pollution source should be a known one in order for an event to qualify as an abnormal situation. That approach narrowed the definition of an abnormal situation by excluding unexpected pollution events with complex causes.

Nevertheless, the Agency had a discretion to take account of an abnormal situation in its assessment and classification of water quality, even where sampling had not been suspended at the time. It had a duty to ensure realistic water quality classifications based on the most reliable parameters. There was ample authority for it to retrospectively treat sampling as having been suspended where that was necessary to arrive at a realistic classification. In believing that it could not do so, the Agency misdirected itself.

When assessing water samples for the purpose of classifying bathing water quality under the Bathing Water Regulations 2013, the Environment Agency could disregard samples taken during an "abnormal situation", as defined by Regulation 2(1), by treating sampling as having been suspended while that situation existed, if that was necessary to arrive at a realistic classification.

Comment

  • The Bathing Water Regulations 2013 were based on the European Bathing Waters Directive. The Directive sets standards for monitoring water quality in places where large numbers of people are expected to bathe.

  • These standards measure E. coli pollutants which are a common cause of minor illnesses.

  • The Directive brought in a new focus on providing bathers with information on water quality at each designated bathing water so that they can make an informed choice on going into the water.

  • The Regulations removed from private controller’s responsibilities for informing the public and responding to pollution of bathing waters. These are now the responsibility of the relevant local authority.

  • 116 bathing waters are owned by private individuals or charities. They do not actively manage the bathing water, and local authorities carry out duties under the 2013 Regulations in respect of private controllers.

  • The Regulations also give effect to European legislation setting the symbols which must be used at all bathing waters in Europe to advise the public on the quality of water and advise against bathing where the water quality is poor.

  • “Bathing prohibited” sings are not used in England and Wales because this would require local authorities to close access to bathing water and enforce the prohibition. Defra took the view that providing advice against bathing was a more proportionate approach.