A Boost for Water Quality? The Pickering Case 2025

In the landmark case of Secretary of State for Environment, Food and Rural Affairs v Pickering Fishery Association and Environment Agency [2025] EWCA Civ 378, the Court of Appeal delivered a pivotal judgement that could reshape the regulation of water bodies across the country. The case revolved around the approval by the Secretary of State for Environment, Food and Rural Affairs (SSEFRA) of the Humber River Basin Management Plan (HRBMP), which was prepared by the Environment Agency (EA).  

The SSEFRA’s approval was challenged by the Pickering Fishery Association (PFA) on the grounds that it failed to include specific measures for the improvement in the quality of individual water bodies, such as Upper Costa Beck, within the river basin district. The Court of Appeal upheld the High Court's decision that the HRBMP was unlawfully approved because it did not comply with the requirements of the Water Framework Directive (WFD) and its transposition into UK law through the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (WFDR 2017).

The court emphasised that the WFD and WFDR 2017 require that a River Basin Management Plan (RBMP) must contain:

1. Environmental Objectives (EO) for each river basin district, and
2. a Programme of Measures (PoM) to be applied to achieve those objectives.

The PoMs must be tailored to individual water bodies rather than being generic or high-level. The judgement clarified that PoMs must identify specific actions for each water body to achieve its EOs within the relevant deadlines.

The judgement also addressed whether this requirement would apply to other plans specific to other individual water bodies. The court's decision indicates that the principles established in this case are applicable to other river basin management plans, reinforcing the need to include specific measures for each water body affected.

It is interesting to note that the Office for Environmental Protection (OEP) was involved as an intervener in the case, providing written submissions. The OEP expressed concern for the implementation of the WFD and the health of water bodies if the appeal were allowed. The OEP's involvement underscores the importance of ensuring compliance with environmental laws and the need for detailed measures to achieve EOs. 

The Pickering Decision and Water Discharge Permitting

The Environmental Permitting (England and Wales) Regulations 2016 (EPR) and the Water Industry Act 1991 (WIA) control water discharges to water bodies in England and Wales.   When assessing an application for a water discharge permit, the EA must consider the potential impact of the discharge on the water body quality which includes assessing whether the discharge could detrimentally affect the EOs set out in the RBMP. Indeed, one of the arguments submitted by the SSEFRA in the Pilkington case was that other legislative regimes, such as the EPR and WIA, deal with actions on the ground to meet the EOs and thus could be read in tandem with the generic PoMs. 

The court rejected this argument firstly because the EPR and WIA do not cover all the actions required to achieve the EOs and secondly, the PoM would need to explain specifically how such legislation would be applied to a water body to achieve its EOs.

What Happens Now?

Subject to any further challenge to the Supreme Court, the administrative burden on both the SSEFRS and EA is stark. Indeed, the court recognised the extend of the burden by saying:

“There are nearly 5,000 water bodies in England, 58,000 water discharge permits and 20,000 licences. There are just over 1,000 water bodies in the Humber River Basin District alone. Requiring a PoM to specify measures at the level of individual bodies would be resource intensive and would divert EA resources from “other essential duties”.”

The SSEFRA and EA submitted that it would be administratively unworkable to require a full PoM for each water body within the 12 river basin districts.

As things stand, whilst the decision to approve the HRBMP is quashed, the EOs in all 12 RBMPs, it is considered, remain valid for the purposes of water discharge permitting. It remains to be seen however, how the SSERA and the EA will now approach PoMs for each of the river basins. 

The court does provide a hint towards a possible solution by saying that “The PoMs under the WFDR 2017 do not supersede the operation of regulatory regimes” and that …”WFDR operates in harmony with other regimes” . It may be therefore that the EA reverts to one of its submissions that other legislative regimes, such as the EPR and WIA, deal with actions on the ground to meet the EOs, but address the court’s reason for rejection by providing for additional actions to achieve the EO for each river basin.