Deep Dive: Pickering Fishery Association decision and obligations to achieve environmental objectives

Cornerstone Climate, Public Law and Judicial Review, Planning and Environment

By Max Millington

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 (“EA”) to the preparation and approval of River Basin Management Plans (“RBMPs”) is unlawful [113].

This is a significant decision, providing an authoritative interpretation of the provisions of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (SI 2017 No. 407) (“the WFDR 2017”) with potentially far-reaching implications, not only domestically, but also for European jurisdictions, given the centrality of the Court of Appeal’s interpretation of the “Water Framework Directive” (“the WFD”) itself to the decision.

It is also interesting from a wider environmental and climate perspective, as it grapples with key questions relevant to the extent of the Government’s and regulators’ duties to act, and to put in place potentially detailed and resource-intensive programmes of measures, in order to comply with duties that are seen as high-level and strategic.

This deep dive gives an overview of the legal framework and the background to the appeal, before turning to the Court’s reasoning in respect of the key issue raised by the appeal and considering what the decision might mean for the operation of this legislative scheme moving forward. All number references in square brackets (other than dates in case citations) are to paragraphs in the Court of Appeal’s judgment.

The WFDR 2017

The WFDR 2017 transposes into domestic law Directive 2000/60/EC of the European Parliament and of the Council “establishing a framework for Community action in the field of water policy”, commonly referred to as the WFD.

The Secretary of State for DEFRA and the EA are obliged by reg. 3(1) WFDR 2017 to “exercise their relevant functions so as to secure compliance with the requirements of WFD”. Under reg. 3(2) and (3) the Secretary of State and the EA must exercise their functions of deciding whether to grant, vary, revoke, or impose conditions on an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 (SI 2016 No. 1154) (“ERP 2016”) or a licence for abstraction under the Water Resources Act 1991 (“WRA 1991”) so as to (a) prevent deterioration of surface water or groundwater status of a body of water and (b) support the achievement of the “environmental objectives” set for a body of water (subject to certain exceptions).

Under reg. 12 WFDR 2017, the EA must prepare and submit to the Secretary of State for DEFRA “environmental objectives” for each river basin (reg. 12(1)(a)) and a “programme of measures” to be applied in order to achieve those objectives (reg. 12(1)(b)). In preparing proposals for environmental objectives and any corresponding programmes of measures, the EA must adopt an appropriate public consultation process (reg. 12(2)). A duty is placed on the Secretary of State for DEFRA by reg. 12(6) to ensure that periodic reviews of the environmental objectives and programme of measures for each river basin district are conducted every six years.

Regulation 13 identifies that the “environmental objectives” for the purposes of reg. 12 are to: (a) prevent deterioration of the status of each body of surface water; (b) protect, enhance and restore each body of surface water to achieve good ecological status (other than for “an artificial or heavily modified water body”); (c) protect and enhance each “artificial or heavily modified water body” with the aim of achieving good ecological potential; and (d) aim progressively to reduce pollution and cease or phase out emissions and discharges of hazardous substances.

The EA may, pursuant to reg. 15, designate a body of water as being “heavily modified” if it considers that (a) the changes which would be necessary for achieving good ecological status would have significant adverse effects on the wider environment, water regulation, flood protection, land drainage, or other sustainable human development activities; or (b) the beneficial objectives served by the modified characteristics of the water body cannot, for reasons of technical feasibility or disproportionate cost, reasonably be achieved by other means which are a significantly better environmental option.

Where monitoring or other data indicate that the environmental objectives for a body of water are unlikely to be achieved, the EA, or where appropriate the Secretary of State for DEFRA is obliged, by reg. 25, to ensure that (a) the causes of the possible failure are investigated; (b) relevant permits and authorisations are examined as appropriate; (c) monitoring programmes are reviewed and adjusted as appropriate; and (d) any additional measures as may be necessary to achieve the environmental objectives are included in the programme of measures applying to that body of water.

Part 6 WFDR 2017 is concerned with RBMPs. Regulation 27 sets out the requirements of these plans by reference to Annex VII of the WFD. This specifies that RBMPs must include, inter alia, a list of the environmental objectives established for surface waters, groundwaters and protected areas, and a “summary” of the programme of measures adopted and how these will achieve the relevant environmental objectives.

Regulation 16 allows for the deadlines for attaining environmental objectives for a body of water to be extended, subject to the requirement (under reg. 16(6)) that the relevant RBMP sets out: (a) the extended deadline and the reason for it; (b) a summary of the measures to be applied to achieve the objective(s); and (c) the reasons for any significant delay in making these measures operational and the expected timetable for their implementation.

Background to the appeal

Upper Costa Beck (“UCB”) in the district of Ryedale in North Yorkshire was a body of water once popular for recreational fishing. For many years, however, it has been polluted by discharges from several sites along its length – including a water treatment works, two fish farms and an amusement park – which have caused a decline in its populations of fish [1]. This body of water falls within an area covered by the Humber River Basin Management Plan (“the HRBMP”) approved by the Secretary of State for DEFRA on 14 December 2022 under reg. 31(1) of the WFDR 2017 [2].

On 14 March 2023, Pickering Fishery Association issued a claim for judicial review challenging the lawfulness of the Secretary of State’s decision to approve the HRBMP.

It was agreed between the parties that the ecological potential of UCB was not “good” and that this was, at least in part, the result of pollution caused by discharges from the water treatment works, fish farms and amusement park for which relevant permits had been issued [49]. Abstraction licences have also been granted in respect of UCB. The HRBMP provides the explanation for an extended deadline for achieving “good ecological potential” in UCB as “Disproportionately expensive: Disproportionate burdens… Action to get biological element to good would have significant adverse impact on use” [50].

The four grounds of challenge were: first, that the Secretary of State had failed to carry out a periodic review of the programme of measures in the HRBMP as required by reg. 12(6) WFDR 2017; second, because the plan submitted by the EA for approval did not comply with the requirements of reg. 12; third, that the Secretary of State had failed to carry out a review of the implementation of measures set out under reg. 16; and fourth, that the Secretary of State had failed to carry out an appropriate public consultation [5].

Lieven J had characterised the issue at the heart of the claim as being “whether, and to what degree, the HRBMP or any other documents produced by the EA pursuant to WFDR 2017 must set out information at the level of the individual water body, as opposed to at river basin district level, or even national level”, explaining that the “information in question is what measures are going to be taken to achieve the environmental objectives referred to in the WFD and WFDR 2017” ([2023] EWHC 2918 (Admin)’ [2024] PTSR 315, at [8]). Although the decision challenged was the approval of the HRBMP, Lieven J stated that the “real thrust” of the case was that there was “an obligation on the [Secretary of State] to set out the measures that are to be taken to meet the objectives in respect of the individual water body (here UCB); to review those measures; and to consult upon them”, which on the claimant’s case the Secretary of State had not done ([2023] EWHC 2918 (Admin)’ [2024] PTSR 315, at [9]).

Lieven J allowed the claim in her decision of 19 February 2024, holding that the Secretary of State had misdirected herself in relation to reg. 12 WFDR 2017 by proceeding on the basis that a programme of measures submitted by the EA in relation to the updated HRBMP could be generic. On a proper interpretation, the programme of measures had to focus on whether, when and how the environmental objectives designated for every individual body of water would be met.

The issue raised by the appeal

The “decisive issue” before the Court of Appeal was whether Lieven J had erred in holding that reg. 12 WFDR 2017 required the programme of measures to include measures for each individual water body in every river basin district [13].

The Secretary of State’s single ground of appeal was that the judge had misinterpreted the WFD as transposed by the WFDR 2017: this legislative framework was intended to be “strategic” and “high-level”; a programme of measures which must be approved in relation to a river basin district is not required to specify measures for individual water bodies (such as UCB) of which there are just over 1,000 in the Humber River Basin District alone; it may lawfully rely on generic measures – including the provisions of national legislation such as ERP 2016 and WRA 1991 – in accordance with the purpose of the legislative framework [68].

The Court of Appeal’s decision

The Court of Appeal confirmed that on a proper interpretation of the WFD, as transposed into domestic law by WFDR 2017, the purpose of setting environmental objectives is to attain, achieve, or succeed in reaching, the relevant water body status. The language of regs. 12 and 13 of the WFDR 2017 is not “merely aspirational”. A programme of measures must be understood to refer to the plan or scheme of actions required to achieve environmental objectives at the level at which they have been set, namely, for individual water bodies. The “measures” in a programme of measures must either be specific to a water body or, if generic, related to the achievement of the environmental objectives for each water body [151]-[156].

Fulfilling the requirements of the WFD involves interconnected stages directed at identifying and implementing specific measures necessary to attain the environmental objectives set for each water body. The preparation and approval of a programme of measures serves that purpose and therefore is not a freestanding exercise [140]-[141]. The WFD (and by extension the WFDR 2017) sets a legal framework within which programmes must be established bringing together (that is integrating and co-ordinating) measures based on legal, policy and voluntary “mechanisms” for achieving the environmental objectives for each water body [150].

The WFD imposes detailed requirements which are not all of a high-level or strategic nature [132]. 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 Commission’s policy, as embodied in the WFD, provided 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 [127].

The Court focussed on the clear distinction drawn by the WFD between a programme of measures and a RBMP [101]. Moreover, it held that the WFDR 2017 is even clearer than the WFD in maintaining the distinction between the programme of measures and the “summary” of the programme of measures in the RBMP [103]. While “Environmental objectives and programmes of measures” are dealt with in Part 5 of the WFDR 2017 and regs. 12 and 13, RBMPs are dealt with separately in Part 6. The requirements in relation to each within the Framework are distinct [103]-[106].

The Court noted that the statutory guidance published by the Secretary of State for DEFRA in September 2021 under reg. 36(5) of the WFDR 2017, entitled “River Basin Planning Guidance”, was consistent with this interpretation of the legislative framework [174]. The Court considered “the natural and plain meaning” of paras. 9.1 and 9.2 of that guidance is that programmes of measures must set out measures for each individual water body to meet the environmental objectives for that body [183]. While the guidance (at para. 14) recognises that national legislation may be a “mechanism” by which a measure or “action on the ground” might be taken, the Court said the guidance does not treat such legislation as itself constituting a “measure”. Rather, it states that the EA is responsible for considering the combined measures (i.e. “the programme of measures”) and the mechanisms (which may include national legislation) by which they will be delivered [106]. The guidance (at para. 14.19) distinguishes between a programme of measures and a “summary” of that programme for inclusion in the RBMP [107].

The Court held that to comply with the legislation and guidance referred to above, there would need to exist, for each river basin district, a programme of measures which is more detailed than the summary of that programme contained in the relevant RBMP [109]. The introductory text of each of the 10 RBMPs for England gives the impression that beyond the summary, such programmes of measures exist. The Court found, however, that no underlying programmes of measures have in fact been produced, beyond the summaries contained within each RBMP [109].

The Court set out the structure and content of the HRBMP under challenge, making the following observations at [114]-[120]:

• The first 143 pages contain the same text as can be found in every other RBMP, which is high-level and generic in nature, providing a summary of how the current conditions of waters are classified, the various types of environmental objectives and challenges for the water environment.
• The “summary programmes of measures” which run from pp.27 to 143 is the same for each RBMP throughout the country and therefore is not specific to a river basin or a river basin district. It includes descriptions of “mechanisms” involved at a national level.
• Each RBMP, including the HRBMP provides a link to the EA’s “Catchment Data Explorer” which summarises data for individual water bodies, including UCB, but only as regards characterisation, classification, pressures and objectives. It does not present any proposed measures at the level of individual water bodies.
• Each RBMP also contains a spreadsheet over five pages entitled “Summary of Programmes of Measures”. Many, if not most of the listed measures apply to all river basin districts in the country. Those which are specified to apply to the Humber River Basin District don’t identify which water bodies within the district they apply to. No meaningful details are given of any of the measures, nor is there any explanation as to their expected effects on environmental objectives. The spreadsheet does not identify any water body specific environmental objectives, with only a couple of exceptions.

The lawfulness of a RBMP, including its summary programme of measures, presupposes the existence of a lawful programme of measures upon which it has been based. The Court upheld Lieven J’s determination that the approach adopted by the EA and the Secretary of State to the preparation and approval of the HRBMP was unlawful. The Court held the EA and Secretary of State never reached the stage of exercising any discretion they have, either as to what water body specific measures were necessary or the level of detail into which the programme of measure should go. The appeal fell to be dismissed on the basis of the self-misdirection of the EA and Secretary of State [112]-[113].

In respect of the legal principles which the appeal gave rise to, the Court concluded (at [192]) that:

• To comply with the WFD and the WFDR 2017 a programme of measures drawn up under regs. 12 and 13 must identify a programme or scheme of actions for each individual water body in order to achieve the environmental objectives s for that body within the relevant deadline.
• Where the EA and Secretary of State rely upon generic provisions in a programme of measures, such as national legislation or policy, as a basis for identifying the measures for a water body, they must set out in the programme of measures, measure(s) or action(s) for each water body to achieve its environmental objectives which follow from an application of those provisions to that body.
• So long as a programme of measures shows the measure(s) or action(s) programmed for each water body in order to attain its environmental objectives within the relevant deadline, the level of detail to include in the programme of measures is a matter of judgment for the EA and the Secretary of State, subject to a legal challenge solely on Wednesbury

Discussion

The Secretary of State submitted before the Court of Appeal that the outcome of Lieven J’s decision was “novel” and would, if left undisturbed, fundamentally change the Government’s understanding of the operation of the scheme embodied in WFDR 2017 [12]. It was relevant that the approach which Lieven J’s decision entailed was not the approach taken by any other nation subject to the WFD across Europe.

The evidence before the Court was that there are nearly 5,000 water bodies in England for which there were some 58,000 water discharge permits granted under ERP 2016 and 20,000 licenses [77]. The Court of Appeal rejected the submission that the Respondent’s proposed interpretation of WFDR 2017 was administratively unworkable, determining that the Appellant had failed to substantiate the claim that requiring the EA to review the nation’s water bodies would divert resources from the fulfilment of other essential duties [189], having noted evidence that any such process would take would take around 18 months to two years to complete [188].

While the Court of Appeal has provided guidance that the level of detail to be included within programmes of measures is a matter for the EA and Secretary of State, subject to the usual Wednesbury principles, on any view, the administrative task now faced to ensure compliance with the WFDR 2017 is significant.

The judgment and its consequences for the EA and UK Government are likely to generate interest in European jurisdictions given the centrality of the Court of Appeal’s interpretation of the WFD to the decision.

The Office for Environmental Protection (“OEP”), who intervened in the Appeal, welcomed the decision, stating that it provides clarity in the law. The OEP has  promised to “consider the judgment carefully and engage with Defra and the Environment Agency to understand the action they intend to take to address the court’s findings and deliver improvements in water quality”: OEP welcomes decision in Pickering Fishery Association case on water quality laws | Office for Environmental Protection.

As we said at the outset, the Court of Appeal’s decision is also interesting from a wider environmental and climate perspective. Environmental duties, and in particular climate change obligations, are often seen as high-level and strategic, setting general targets to be met and giving flexibility to Governments and regulators as to how to go about meeting them. Pickering shows that what is really key to these types of duties is the extent to which the Government and regulators are required to put in place transparent and potentially detailed and resource-intensive programmes of measures to ‘actualise’ the duty or take the steps obviously necessary to meet the target. Depending on the nature of the legislative framework, the answer may be that significant and extensive steps are required, and that the Courts are able and willing, in the right circumstances, to require this action to be taken.

About the Author

Max Millington is a second six pupil at Cornerstone Barristers, keen to build a broad public law practice including planning and environment law. Learn more about him here.

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