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Tag: High Court

Justice for Lough Neagh: The First Hearing

Posted on by Molly Allen
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Written by Christian Fuller, River Action’s Legal Coordinator  

This week, River Action took part in the first hearing of a legal case which, for the first time, asks the court to decide whether the Northern Ireland government is doing enough to tackle the water pollution crisis in Lough Neagh. 

Outside of the Royal Court of Justice in Belfast, clean water campaigners and members of the fishing community gathered to make their point plainly: the Lough is being destroyed by algae. Draped in green and holding placards reading ‘Justice for Lough Neagh’, the peaceful demonstration captured the now-familiar sight of blue-green algal blooms spreading across the water in recent summers.

Inside, representatives for the applicant, the Department of Agriculture, Environment and Rural Affairs (DAERA), Ulster Farmers’ Union, River Action and Friends of the Earth NI were present, with a packed courtroom due to public interest and concern.

The case is being brought by eel fisherman Declan Conlon, whose family has fished Lough Neagh for generations. He is challenging the failure of DAERA to comply with its obligations to safeguard and protect Lough Neagh from agricultural and wastewater pollution on eight legal grounds. The claim challenges the lawfulness of DAERA’s response, including its failure to adopt an adequate or lawful River Basin Management Plan. 

River Action has applied to intervene in Mr Conlon’s case to help the court assess whether DAERA is complying with its legal duties by raising important legal and practical matters. Our focus is on what the law requires and particularly the need for a lawful River Basin Management Plan to include clear actions and measures capable of restoring water quality, following the landmark case of Pickering. Drawing on major legal precedents on agricultural waste and nutrient pollution in which River Action has been involved in England, we hope to establish that DAEERA should put in place stronger measures as part of a lawful plan, including the proper enforcement of regulation to control the spreading of manure and sewage sludge, the implications of the classification of manure as waste following National Farmers’ Union v Herefordshire Council, and the need for planning and permitting to take account of cumulative pollution impacts. We will also seek to provide evidence to help the court understand the scale of the problem and what measures and practices could lead to the necessary reduction in pollution. 

At the hearing, the judge recognised the importance of this case. There were, he observed, no obvious “knockout blows” against the applicant. On the contrary, the judge said that this is “an important matter which will require a considerable amount of time to be devoted to it” and referenced “a significant element of public concern” in the situation with Lough Neagh. 

The judge repeatedly signalled there were a large number of issues and that detailed evidence would be required to “get to the bottom” of what is happening in the Lough. The judge emphasised that it was “important to leave no stone unturned” and that meant ensuring all “relevant players” were before the court.

The case will return to court on 1 May for a further review hearing, where the legal issues will be refined and the roles of additional parties considered. A permission decision will follow (to decide whether the claim is arguable and can proceed), with a substantive hearing anticipated later this year. 

This is the first real opportunity for the court to consider the Government’s response to the severe pollution of Lough Neagh and the applicable legal framework, with the potential to become the most significant water quality case in Northern Ireland for a generation. 

It is a critical opportunity to clarify what the law requires and to ensure that meaningful, urgent action is taken to restore Lough Neagh.

Campaign update: High Court rules on lawfulness of Ofwat’s approach to customers not paying twice

Posted on by Molly Allen
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Today the High Court has handed down its decision on the lawfulness of Ofwat’s approach to its policy that water company customers should ‘not pay twice’ for sewer overflow upgrades to achieve environmental compliance and reduce pollution of our waterways. Although River Action’s claim was dismissed, the case has resulted in important clarity and should result in a better regulatory approach.

Ofwat is responsible for regulating water companies and controls what they can charge customers through its five-year price reviews, with Ofwat’s Price Review 24 (PR24) exercise setting charges for the sixteen largest water companies from 2025-2030. Following investigations into water company compliance after widespread sewage discharges were revealed in 2021, Ofwat promised that customers would not pay twice for environmental improvement works that had previously been funded and should already have been delivered. 

Last year, River Action took forward this case because investigatory work by Save Windermere and Windrush Against Sewage Pollution identified potential systemic failures in how Ofwat oversees compliance across the entire water industry and how it routinely signs off funding that could allow water companies to use customers’ money to rectify their own past non-compliance. As well as ensuring customers do not pay twice, the key issue from River Action’s perspective is the significant long-term failures of water and sewerage companies to upgrade storm overflows, sewage treatment works and pumping stations to comply with environmental law because the sewage pollution that results from those infrastructure failures is causing harm to our rivers and lakes.

Internal documents that only emerged as a result of this litigation revealed significant confusion at Ofwat, indicating Ofwat may have failed to follow its ‘not paying twice’ policy because, as it admitted privately but not publicly, “some historical investment programmes now appear to fall short of what should have been required to comply”. Those documents showed that Ofwat did not know whether there was full compliance and whether customers would ultimately pay twice in some instances because Ofwat had failed to look at Urban Waste Water Treatment Regulations (UWWTR) compliance as well as environmental permit compliance. This is a major mistake that, unless monitored closely in the future, could result in billions of pounds of investment being spent on environmental improvements that should already have been delivered. 

At the hearing, River Action argued that Ofwat’s approach was flawed and unlawful because:

Ground 1: Ofwat’s approach to implementing its ‘not paying twice’ policy was unreasonable because to actually show that customers would not pay twice (1) water companies needed to demonstrate current compliance (namely the reality on the ground, not simply assuming or modelling compliance) and (2) water companies needed to demonstrate customers would not pay twice for improvements that should have already happened. Essentially, our complaint was that Ofwat had publicly said that companies would have to demonstrate compliance but then dropped that requirement without explaining why.

Ground 2: Ofwat’s ‘clawback’ mechanism is flawed and incomplete because it is limited to double funding of permit compliance and does not deal with double funding of UWWTR compliance, despite Ofwat’s internal documents revealing both are required. This means it falls short of operating to ensure that customers will not pay twice.

The High Court has today ruled that Ofwat’s approach was lawful because Ofwat’s evidence provided a ‘sufficient logical basis’ for its approach. In reaching its decision, the Court said that Ofwat has ‘significant latitude’ when looking at the legality of its decisions relating to price controls and compliance because of its role and responsibilities as a regulator.

But the Court did not fully grapple with River Action’s case, focusing on whether Ofwat’s use of modelling data was in line with its ‘not paying twice’ policy but not addressing our key argument that Ofwat’s policy also requires companies to actually show permit compliance. The Court has also not addressed the regulatory gap that exists between Ofwat and the Environment Agency when looking at permit compliance.

There was a positive outcome on the issue of the ‘clawback’ mechanism (intended to prevent double funding when water companies cannot provide evidence of promised improvements towards the end of a price review period). At the hearing, it became clear that Ofwat has yet to settle the rules that will decide whether any clawback should occur, meaning this argument was found by the Court to be ‘premature’. This was a welcome clarification and leaves the issue open so that the clawback mechanism can be fixed and used by Ofwat to make sure customers do not pay twice.

Essentially, in dismissing River Action’s claim, the Court has said that it thinks Ofwat’s approach is good enough because in theory Ofwat might be able to ‘clawback’ money that is spent in breach of Ofwat’s ‘not paying twice’ policy.

That does not mean the water regulator should not do better. It can and it must.

Our legal challenge has shone a light on problems with Ofwat’s regulatory approach and highlighted the urgent need for reform. Going forward, the regulator must not allow customers to pay twice by ensuring that water companies comply with both permit compliance and compliance under the UWWTR. Ofwat must also settle the clawback mechanism so that it works in relation to both permit schemes and UWWTR schemes.

While we waited for judgment, in December 2025, the Office for Environmental Protection (OEP) published notices and reports finding that Ofwat, the Environment Agency and Defra failed to properly enforce the law relating to sewage discharges from combined sewer overflows. The OEP’s findings show that Ofwat did not understand for decades that it had a duty to enforce environmental compliance under the Water Industry Act and the UWWTR, only recognising in June 2022 it had this important enforcement function in addition to ensuring assets comply with their permits. This supports our case that Ofwat has not required full compliance in past price reviews and was trying to play catch-up in PR24, while claiming publicly that it only needed to look at permit compliance despite knowing that was only part of the picture.

This judgment and the OEP’s findings are timely as, following the recommendations of the Independent Water Commission, this Government now looks to overhaul the water sector including by creating a new integrated regulator to replace Ofwat and bring together economic, environmental and water quality regulation. The Independent Water Commission also made recommendations relevant to regulatory gaps in holding water companies to account for the delivery of infrastructure projects and customers not paying twice.

Whatever form the future regulator takes, its approach on this fundamental issue should be clear, transparent and fully compliant. Customers must not compensate water companies for poor performance by paying twice for improvements that have not been delivered. And the regulator must hold water companies fully accountable by enforcing all relevant laws.

We will not be appealing the decision. Our focus now is on continuing to push for the major regulatory reform needed to ensure real oversight and enforcement, so water companies are properly held to account and sewage pollution is stopped for good.

High Court ruling adds weight to challenge to intensive poultry unit in Shropshire 

Posted on by Molly Allen
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A judicial review case supported and funded by campaign group River Action as part of its drive to limit the uncontrolled growth of large-scale intensive poultry production farms has been strengthened by an important High Court ruling this week.

A judge has allowed further grounds to be added to the claim brought by River Action advisory board member Dr Alison Caffyn. It is challenging Shropshire County Council’s planning permission for the construction of a large-scale intensive poultry unit.

Granting permission, the judge said that there is ‘wider interest’ in the court hearing the extra two grounds at the substantive hearing due in the coming months, and emphasised that it would be helpful to have the court’s authority on the issues raised.

The case is now set to be heard on four grounds when it is presented to the High Court at a hearing in March or April 2025.

The legal action aims to stop the spread of intensive poultry production in Shropshire and the River Severn catchment area, and is part of a nationwide campaign by River Action to prevent river pollution caused by intensive agricultural practices.

An application for the poultry production unit by developer LJ Cooke & Son was approved by Shropshire Council in May 2024 after it had initially been rejected, with the site located north-west of Shrewsbury at Felton Butler.

In July 2024, a legal challenge opposing the poultry unit was launched by Dr Caffyn, who lives in Shropshire and is a member of River Action’s advisory board.

The case argues that the decision to grant permission failed to account for the cumulative impact of the rapid and uncontrolled increase of intensive poultry units being constructed within specific river catchments. It is argued that the effect of spreading manure and the emissions from burning biomass is causing severe concentrations of river and air pollution.

Following the recent severe pollution of the neighbouring catchment of the River Wye, which is believed to be because of the expansion of intensive poultry production, the case argues that the catchment of the River Severn is now being subject to similar environmental threats.

Follow the High Court ruling, the expanded grounds being argued in the March judicial review hearing are:

 

  • A failure to assess the effects of spreading manure and the emissions from burning biomass, which as indirect effects of the development, needed to be assessed.
  • A failure to impose a lawful planning condition on manure processing that would mean that the development would not cause groundwater pollution.
  • A failure to carry out a lawful appropriate assessment as required by the Habitats Regulations to ensure that the development would not adversely affect the integrity of a designated protected habitat – an area with special status due to its natural importance.
  • A breach of regulation 9(3) of the Habitats Regulations, which requires the council to take steps to avoid the deterioration of protected habitats.

 

The first two grounds were given permission in October 2024, with permission for the third and fourth grounds being given permission at a hearing in February 2025.

The proposed poultry unit would house 200,000 birds and include four poultry rearing buildings each over 100 metres long, as well as a biomass store with boilers. It would be located 400 metres from an existing poultry site, which is thought to hold nearly 500,000 birds.

Permission for the unit was initially refused after Natural England advised that three nearby protected sites, Shrawardine Pool, Lin Can Moss and Fenmere, could be impacted by aerial pollutants.

Council officers also raised concerns over the lack of detail on how the development would handle chicken manure without an anaerobic digester – a large sealed vessel used to break down organic materials.

However, the plans for the development were approved after LJ Cooke & Son proposed exporting manure to a third party anaerobic digestion unit.

Chairman and founder of River Action, Charles Watson, said:

“Like an appalling car crash in slow motion, exactly the same set of tragic events is now unfolding in catchment of the River Severn as has happened recently in the neighbouring catchment of the River Wye. We believe the waving through of permission for ever more giant intensive poultry units by Shropshire County Council is environmentally reckless. We are determined to do whatever it takes to support this critically important legal claim to end the ecocide which we say is being perpetrated upon our most iconic rivers by uncontrolled intensive agricultural practices.”

Dr Alison Caffyn said: 

“It’s really encouraging that the two extra grounds have been approved. We’re looking forward to demonstrating next month how inadequate Shropshire Council’s processes have been in granting planning permission for this industrial chicken operation. Shropshire has some really special countryside and habitats and local people need to be sure that the Council is protecting these and the River Severn catchment”

Leigh Day environment solicitor Ricardo Gama said: 

“Our client is delighted that the court has allowed two further grounds to proceed to a full hearing. This means that the hearing will now encompass the detrimental impact our client says the poultry unit will have on nearby protected habitats, as well as from the negative effects of pollution from manure and burning biomass. We look forward to arguing the case in the High Court, as part of River Action’s wider campaign to protect rivers from pollution caused by intensive agricultural activity.”

ENDS

High Court ruling declares farming manure as ‘waste’ in major victory for River Action in its fight against industrial-scale poultry production in Wye Valley

Posted on by Molly Allen
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Landmark court ruling declares farming manure as ‘waste’ in major victory for River Action in its fight against industrial-scale poultry production in Wye Valley and exposes the failure of a regulatory regime that has failed to protect the environment

 

In a huge boost for River Action’s campaign against industrial scale poultry production, the High Court has today ruled that chicken manure can be classified as ‘waste’ and a council was entitled to require it to be disposed of under council waste rules. The Judgment has huge implications for handling manure on farms everywhere.

Pollution from agriculture, much of it from manure from animals on farms, is the biggest source of water pollution in the UK.

Following the adoption of Herefordshire County Council’s (HCC) Minerals and Waste Local Plan (MWLP) in March 2024, the National Farmers Union (NFU) mounted a judicial review challenge arguing that manure produced by agricultural developments like intensive Poultry Units (IPUs) is an agricultural “by-product” and should not be classified as ‘waste’ under the Waste Framework Directive (WFD). Before the court, the NFU did not dispute that chicken manure is the main source of nutrient pollution causing an ecological crisis in the River Wye. But it still argued that none of the controls on waste handling should apply and that HCC could not deal with it through a policy (policy W3) its MWLP.

In its intervention, River Action said environmentally damaging algal blooms in the River Wye have arisen as a result of livestock manure causing excessive phosphates to build up in the soil, which then runs off and leaches into waterways.  River Action argued that manure should be classified as ‘waste’ at least until its point of use under the WFD, and that controls need to be in place to ensure that waste producers take responsibility for disposing of waste in a lawful way.

The Hon Mrs Justice Lieven agreed that it cannot be assumed that manure will be used in an environmentally safe way. She then agreed with River Action that, given the environmental problems caused by chicken manure in the Wye catchment area with narrow and specific exceptions, manure is ‘waste’ in law up to the point it is sold or transferred to a third party. This means that chicken producers in Herefordshire will have to provide a detailed plan at the planning application stage to ensure chicken manure can be disposed of safely, including full transparency on the manure’s destination and application. They cannot rely on wastewater rules monitoring.

The judge also comprehensively rejected the NFU’s argument that HCC had to assume that the Farming Rules for Water (FRfW) – which regulate the spreading of manure on fields – were operating effectively to combat water pollution, so that no harm would be caused to the Wye by additional chicken manure – when all parties accepted that that was not the case. She observed that the FRfW are “a regulatory regime which beyond any doubt had failed to protect the environment from harm” and that HCC was justified in adopting a policy that recognised the FRfW were failing to operate effectively.

That is a clear win for common sense and realism given that historically developers often argue in planning cases that environmental consequences will be dealt with by other regulatory regimes, and so should not be the subject of planning controls.  The judge was clear that planning authorities did not have to make any such assumption, where there was clear evidence that other regimes were failing, as is all too often the case.

River Action chair Charles Watson said:

”This historic court ruling marks a major victory both for the River Wye and rivers generally across the nation and it exposes yet another attempt by the NFU to push back on important initiatives intended to end the blight of agricultural pollution in our rivers. 

We believe the ruling clarifies once and for all that the intensive factory production of livestock is clearly an industrial manufacturing process, whereby the often-toxic waste that it produces must be treated as such. 

This landmark ruling should set a vital precedent not just for other planning authorities to embed similar enhanced protections into all planning applications for livestock production developments. It also demonstrates that our environmental regulators need to now take urgent action to enhance pollution regulations to reflect the serious threat that intensive livestock production clearly poses to the health of our rivers.”

River Action was represented by Carol Day, Ricardo Gama and Julia Eriksen of Leigh Day and David Wolfe KC (Matrix Chambers) and Peter Lockley (11 King’s Bench Walk).

Leigh Day environment team solicitor Carol Day said: 

“The NFU sought to challenge common-sense policies in the Minerals and Waste Local Plan requiring new poultry units to have a detailed plan for disposing of chicken manure on the basis that the manure is not waste in law and therefore not covered by the MWLP.

“The judge resoundingly agreed with River Action that chicken manure is classified as ‘waste’ in law. This judgment vindicates HCC’s approach and is a victory for the River Wye and the wider environment.”

This means that people proposing new Intensive Poultry Units in Herefordshire will need to put in place proper arrangements for dealing with the huge volumes of manure that is produced. The judgment should also now mean that proper environmental controls are put in place across the country to oversee the production and handling of manure from animals on farms.”

—ENDS–

You can read the full judgment from the High Court, here.

Dr Alison Caffyn: “Chicken farm… or factory?”

Posted on by Molly Allen
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I have had to address this question twice in the last week. Both times I was chatting with people from conservation charities in Shropshire about the environmental impacts of intensive poultry operations locally. Both times the individual expressed sympathy with chicken farmers – along these lines: “It’s been so difficult for family farms in the last few years; what with low farm gate prices, huge shifts in support mechanisms and challenging climate changes. One has to symphathise if they feel their only option is to put up a chicken shed or two.” Each time I have tried to rebalance their perceptions of a typical ‘chicken farm’ in this area.

Firstly, it is true, there are some operations which fit the above description, particularly on and over the Welsh border. Small, one shed, free range egg units with, commonly, 16,000 birds operating in upland landscapes, diversifying from unprofitable sheep or cattle businesses. There are even some older chicken operations producing a few thousand organic and free range birds for the local market – but these are few and far between. The vast majority of intensive poultry units have capacity for 30-90,000 hens or many hundreds of thousands of broiler (meat) chickens.

When I interviewed farmers and land agents in Shropshire and Herefordshire for my research we discussed farmers’ motivations for going into poultry. I even developed a typology. The five ‘types’ included the ‘desperation factor’ described above. But there were also: older, large, well-established broiler operations – some dating back to the start of the industry in the 1960s and some still owned by the chicken processing company (Cargill). There were many large farms which diversified into poultry in order to support other farm enterprises. There were several large estates developing poultry as a new venture (for tenants) and finally, a few cases where investors had made speculative land purchases in order to set up a new poultry operation.

Some older sites have been expanded in stages over the decades with some IPUs now having 10-16 ‘sheds’ and up to a million birds. I was told the average return on investment (of about £500,000 per shed at the time) was ten years. Sooner, if the site installed biomass boilers and the like to receive generous Renewable Heat Incentive payments. Some IPUs were making substantial annual profits.

I’ve done a bit of number crunching to check my facts. The average size of all 150 odd IPUs in Shropshire is 131,000 birds. Broiler units are larger on average, housing around 200,000 birds per four sheds. Egg units are generally smaller averaging 83,000 hens – but that includes both several units with only around 4,000 birds and one large egg operation with nearly 2 million.

I have walked close to or through many IPUs in Shropshire and Herefordshire and spent more hours than I care to admit poring over satellite imagery of all the others. Most don’t look or sound or feel or smell like a farm. The brooding 100m long sheds, the acres of concrete, sickly reek and eerie stillness are not what you would expect on most farms. The operation is overseen on the site manager’s laptop or phone. There is a periodic rattle of feed being pumped along automatic feeding tubes. There will be someone who walks through each shed once a day to pick up the dead birds. Until, after six weeks, the lorries arrive to take the birds away to the processing factory.

You get the picture. And that picture is more factory than farm. An agricultural factory, in a rural location. But not a farm. And, indeed, many farmers say exactly this themselves.

We need to take this growing diversity of agricultural operations into account when addressing the impacts of the industry. No one want to accuse all farmers of environmental harm. Many are doing amazing, progressive things to transition towards more sustainable farming systems. Only a small percentage of farms locally have intensive livestock operations, but their environmental impacts far outweigh those that do not. But out of date perceptions and misplaced sympathy are not helpful – although they are often promoted by farming lobbyists.

Dr Alison Caffyn – River Action Advisory Board member

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