Sewage Discharges In England: Politics, Regulatory Control And The Role Of The Courts

• Published date: 17 October 2022
• Subject Matter: Corporate/Commercial Law, Environment, Energy and Natural Resources, Corporate and Company Law, Environmental Law, Water
• Law Firm: Steptoe & Johnson
• Author: Mr Tom Gillett and Simon Tilling

Industry, Government, the regulators, and even the Courts, are currently grappling with the issue of unlawful sewage discharges to England's waterways, a complex challenge of investment in an ageing sewerage network that has been super-charged by a groundswell of public opinion, and might even be the root of a dispute under the EU-UK Trade & Cooperation Agreement. We consider the latest political and legal developments in this long-running saga, and take a closer look at the role of the Courts following the Court of Appeal decision in Manchester Ship Canal Company Ltd v United Utilities Water Ltd.

On his first day in office, the newly-appointed Secretary of State for Environment, Food and Rural Affairs (DEFRA), Ranil Jayawardena, ordered water companies to submit plans to reduce sewage discharge into waterways within two weeks. In his first speech to the House of Commons, Mr Jayawardena did not pull any punches, stating:

''The volume of sewage spewed out by water companies is completely unacceptable, and the public have rightly shown their outrage. Yesterday, in my first day in office, I told water chief executives that it is not good enough, and I have instructed them to write to me formally by 21 September with a plan for how they will make significant improvements. I also met the Environment Agency and Ofwat, and I told them that they should use every enforcement power available to them to make sure that there is compliance. I will not hesitate to take further action if I do not see the pace of change that this House expects.''

Undertaking such action on the very first day in the job is clearly intended to send a message that this issue is a top priority of the new Government. While the well-publicized policy approach to many other areas of environmental law has a deregulatory angle, Mr Jayawardena appears to have reached the view (rather quickly) that the political pressure to resolve the perceived issues with sewage discharge requires a rather more robust approach.

Mr Jayawardena's intervention is simply the latest in a series of policy announcements, regulatory investigations and judicial decisions over the summer, but the mounting pressure suggests that this may indeed be an issue by which the latest top team at DEFRA will come to be judged. It is notable, in particular, that the issue of unlawful discharges has even be raised by Members of the European Parliament as being a potential breach of the EU-UK Trade and Cooperation Agreement.

A Summer of...