Dismissed Bathing Water Applications ‘Lacked Reasons’

23 March 2023

Though always a source of enjoyment for many, wild swimming spots have seen a real surge in use in recent years. So, however, have issues of pollution in many of these wild swimming spots. The pollution can be caused by combined sewer overflows discharging into the water bodies, or by diffuse pollution caused by run-off from agricultural and urban areas.

It is no wonder then that so many people would like to see such spots gain ‘bathing water’ designation for both health and ecological reasons. They will be disappointed by the Government’s decision on 10 March 2023 to take just four sites forward to public consultation for bathing water status.

Why is bathing water status beneficial?

Bathing water status provides water bodies with a level of environmental protection as the Environment Agency will have to monitor and test the water quality regularly at these sites during the bathing season (15 May – 30 September), and assess whether action is needed to cut pollution levels which do not meet the standards set by the Bathing Water Regulations 2013. This is done by working together with relevant people e.g. water companies, farmers, and local communities to investigate and put remedial measures in place. The information about the water quality and pollution sources at the designated site will be displayed during bathing season to better inform those using the site.

This is beneficial to the health of those using the water, the environmental health of the water body itself, and the affected fauna and flora.

The Bathing Water Regulations 2013 are derived from European Union law, and as such may be subject to changes or repeal in the near future under the Retained EU Law (Revocation and Reform) Bill 2022. The Bill is currently in front of the House of Lords.

What exactly is ‘bathing water’?

Bathing water is defined by the Government as “…coastal or inland water that attract a large number of bathers in relation to any infrastructure or facilities that are provided, or other measures that are taken, to promote bathing at the site.[1]” There does not have to be a set number of bathers for a site to be identified as a bathing water, and the site can be large or small if it attracts a large number of bathers for its size.

There are a total of 421 designated bathing water sites in England, mostly coastal at 407, plus 12 lakes but a mere 2 rivers.

What has the Government decided?

On 10 March 2023, the Government Department for Environment, Food and Rural Affairs (‘Defra’) along with the Environment Agency, and the Water Minister, Rebecca Pow, announced that just four new applications for swimming spots in England have made it over the first hurdle, with eight others being declined. They will now be considered as part of a public consultation to become designated bathing water sites from this Spring. We have been unable to find a Government source setting out which sites did not make it over the first hurdle, but we understand the position to be that 8 other sites, including the River Deben at Woodbridge, and three separate areas on the River Wharfe in Yorkshire have been excluded at this stage without being given reasons. The four sites which have progressed to consultation are:

Sykes Lane Bathing Beach, Rutland Water, Rutland;
Whitwell Creek, Rutland Water, Rutland;
Firestone Bay, Plymouth, Devon; and
River Deben, Waldringfield, Suffolk.

Campaigners for those unsuccessful sites and environmentalists alike are frustrated by this exclusion, but more so by the way in which the refusal to take forward these sites has been communicated. It has been reported that the refusal letters did not set out any reasons for why those sites were not taken forward[2].

Water Minister, Rebecca Pow has said that “[E]ngland’s bathing water sites are an important part of how we safeguard our precious coastal waters, rivers and lakes, as well as protecting the health of bathers.

The actions we have taken mean that people across the country will be able to swim at more sites and in better quality water, but we know there is more to do.”[3]

Should reasons have been given?

Arguably the Government has erred by not giving reasons for those excluded sites. The landmark case, Dover District Council v CPRE Kent [2017] UKSC 79, where CPRE was represented by Richard Buxton Solicitors, considered the scope of the duty of public bodies to give reasons for their decisions more widely (albeit in a planning context). The judgment reiterates that public authorities are under no general common law duty to give reasons for their decisions, but that it is well-established that fairness may in some circumstances require it, even in a statutory context in which no express duty is imposed, see [51] of the judgment. The duty may still arise under common law where it is appropriate to fill in any statutory gaps and allow an individual to bring proceedings to challenge legality of decisions.

Current political and legal climate for cleaning up water bodies

Cleaning up water bodies is high on the political agenda, with damning reports on both the quality of water bodies, and sewage overflow discharges.

Bathing Waters

The House of Commons ‘Environmental Audit Committee’ report ‘Water quality in rivers’ of 13 January 2022 said that “[O]nly 14% of rivers in England can currently claim to have good ecological status. The Government is not on track to meet the Water Framework Directive requirement—subsequently transposed into UK law—for all rivers to reach good status by 2027. Wildlife and Countryside Link has warned that the water quality of rivers in England is the worst in Europe.”[4]

The Government responded to this report on 28 April 2022 (as published by the ‘Environmental Audit Committee’ 16 May 2022), where they stated that “[R]estoring water quality is a priority for the Government” and that there is, indeed, more to do. The Government expressed the opinion that more bathing waters should be designated in an attempt to clean up river quality. They said their aim was to “…restore good ecological status and river bathing designation may offer mutual benefits in achieving this in relevant locations.”[5]

The Government also have a long-term goal in their Environment Improvement Plan with a target for everyone to live within a 15 minute walk of a green or blue space, including bathing sites.

Sewage from storm overflow discharges

One of the main causes of pollution in water bodies is discharge from the storm overflows, a consequence of a sewerage system that is not fit for modern purposes.

Ofwat says that storm overflows are designed to act as relief valves when the sewerage system is at risk of being overwhelmed, for example during heavy downpours when a lot of rainwater runs into drains and the sewerage system in a short space of time, and that in extreme situations they may be used, lawfully, with the correct permits[6]. They are however, being used more frequently than just in ‘extreme’ situations, with the Environment Agency reporting on 31 March 2022 that in 2021 the total number of monitored spill events from storm overflows releasing untreated sewage and rainwater into water bodies, was 373,533, for a total of 2.6 million hours. They said that the data shows no room for complacency[7]. The data is however only from those discharges which are being monitored and in reality there have been more ‘lawful’ discharges.

In terms of ‘unlawful’ discharges, these are subject to an ongoing joint investigation by Ofwat and the Environment Agency[8]. The investigation commenced following findings that some water companies were, in breach of their permits, discharging via the storm overflow system when the facility was not at capacity, and for instance, in dry weather.

There has also been legislative change via the Environment Act 2021 which the Government describes as having put more duties and responsibilities on companies, regulators and the Government to further reduce the use of storm overflows. This has led to the creation of a ‘Storm Overflow Reduction Plan’ to protect the environment, public health in designated bathing waters, and to ensure storm overflows operate only in unusually heavy rainfall events. This Plan is currently subject to judicial review by Wild Fish, but more generally has been criticised for setting targets too far into the future and allowing environmental harm to continue for decades to come.

In terms of regulatory matters, the Office for Environmental Protection is carrying out an investigation into the roles of Ofwat, the Environment Agency and the Defra Secretary of State in the regulation of combined sewer overflows in England. In general, there has also been widespread public distain at the regulatory failures, specifically by Ofwat to meet their responsibilities to regulate discharges of raw sewage. Wild Justice applied for judicial review, but were refused permission.

Conclusions

There is a serious issue concerning water quality in England. Bathing water designations are integral to improving both public wellbeing and the environmental health of water bodies. In particular, rivers remain extremely poorly protected with only 2 designated areas at present, and some, if not all of the recently dismissed applications related to rivers. There is a clear concern by the public and Government alike.

Considering the judgment in Dover v CPRE, and the legal policy surrounding clean water, the duty to give reasons for refusal should be engaged in these circumstances. As such we see that the Government’s failure to provide reasons for the dismissed applications could be vulnerable to a challenge.