“Justify the size of the South East Strategic Resource Option (SESRO). A 100Mm3 reservoir is in Thames Water’s preferred plan. However, the plan indicates that a larger reservoir performs better on some metrics and could also offer additional resilience and environmental benefits. If the company’s preferred solution is a reservoir, it should ensure that it provides the best value solution for its customers and the environment. Thames Water should work with WRSE, and other companies to review and confirm the selection, size and alignment of its options. It should consider the wider benefits for the environmental destination that may be available with each size of SESRO.”
“We have revisited our programme appraisal, accounting for new information and updates to guidance (e.g., 110 l/h/d PCC target, revised option cost information). Changes made as a result of the revised draft WRMP24 programme appraisal process are detailed in Sections 10 and 11 of the rdWRMP, with the primary changes being: - Our consideration is that the 150 Mm3 SESRO option is the best value option for provision of long term resilience of water supplies - If the 110 l/h/d PCC target is achieved, SESRO provides sufficient resource and the Severn-Thames Transfer is deferred. Nevertheless, the Severn-Thames Transfer remains an important back-up option.”
“The Environment Agency, Ofwat and Natural England (the regulators) have reviewed the amended plan to assess that it meets regulatory and statutory requirements. The regulators believe the plan produced by Thames Water could be published and delivered. There however, are some risks and concerns surrounding the plan that we have raised below. Thames Water’s plan includes two major water supply schemes: Teddington Direct River Abstraction (DRA) which is a water recycling scheme that would operate in the lower Thames in London, and a new large reservoir in Oxfordshire called the South East Strategic Resource Option (SESRO). Both schemes have attracted significant public interest and scrutiny of regulators to date. With such public interest in Teddington DRA and SESRO, there is a decision on whether further public scrutiny is required. The statutory Water Resources Management Plan process allows for further public scrutiny of the overall plan or specific parts of the plan, through either a public inquiry, hearing or examination in public. However, there is no precedent for calling for further scrutiny on public interest alone. The justification of need and the selection of the schemes are clearly demonstrated in the Thames Water plan that has followed the water resources planning guideline and legal Directions. Both schemes will have further scrutiny on design through the Development Consent Order process. We believe a decision on further public scrutiny is a Ministerial decision.”
“Recommendations: 3. You agree that the WRMPs (Annex A, Part 1) meet statutory requirements and that you do not require them to undergo further development. 4. You agree that officials write to the water companies to inform them of your decisions. 5. You agree not to require an inquiry or hearing be held in connection with the Thames and Affinity draft plans which propose the SESRO reservoir… Options and Analysis 7.Under the Water Industry Act 1991 , water companies have a statutory duty to provide a secure supply of water for customers, efficiently and economically. Statutory Water Resources Management Plans (WRMPs) show how companies will continue to meet this duty and manage water supply and demand for at least the next 25 years. In their plans, water companies must consider all options, including demand management and new water resources infrastructure. The Secretary of State is to be provided with a WRMP in draft, before the water company publishes it, in order for him to consider whether any changes should be made to it first. He also has the power to call for a hearing or inquiry for further scrutiny. 8. The WRMPs take account of various factors and government and water regulators issued regulations, guidance and legal directions on how water companies should prepare and publish their WRMPs. The Environment Agency's (EA) review of draft regional water resources plans found an additional 5 billion litres of water a day will be needed in England by 2050 to meet water supply pressures. This deficit is driven by the needs of a healthy environment and of a growing population and economy, the impacts of climate change and drought resilience improvements. 9. The draft plans are a step change from what we have seen previously. Water companies propose significant further increases in investment over the period of 2025-2030 amounting to£6 billion (subject to Ofwat PR24 final determinations). This includes increased water demand management to support delivery of statutory targets, including action to reduce leaks and widespread rollout of smart meters. This is alongside investment for multiple new infrastructure schemes by 2050, including at least 9 new reservoirs (further detail on some of the planned infrastructure is provided in Annex B). 10. Since they involve major infrastructure projects, these plans do not presuppose the outcome of the various individual decisions, approvals and consultations which may be required. However, it is appropriate for water companies to plan to resolve future water supply deficits. Thames Water’s proposed new reservoir in Oxfordshire, the South East Strategic Reservoir Option (SESRO) have attracted significant public interest. SESRO has seen calls for a public inquiry on the plan; you have the power to order such an inquiry. There is a risk (considered below) that publication of the plans will result in further pressure to hold an inquiry or other hearing/consultation at this stage on the subject of the SESRO or other controversial elements of the plans. 11. We do not feel an inquiry/hearing into the Thames plan (and hence the SESRO) is necessary. There was an inquiry on the SESRO proposal in 2010, but at that point the regulators were not supportive of the WRMP or think [and did not think] that Thames had properly justified the reservoir. This time is different: EA and Ofwat are both content that the WRMP is published (subject to some minor changes we will ask the company to make before the plan is published). There will be remaining design issues to resolve but the company should resolve these as it prepares for development consent, which must involve further consultation and public examination/inquiry. 12. There is local interest, but we feel this should be balanced with the urgent need to improve the resilience of water supplies in the South East and the water environment. An inquiry will probably delay development by approximately a year. Next Steps 13. We believe water companies listed at Annex A, Part 1, have produced plans that meet their statutory requirements and comply with the guidelines, subject to minor amendments prior to publication being actioned. Water regulators have advised the WRMPs will provide a secure and sustainable water supplies. 14. It is important these plans are published to allow water companies to begin delivery, helping avoid similar issues that we see in Cambridge and North Sussex. The plans represent a step change in ambition and carry risks if not delivered. We will work with regulators to closely monitor delivery through annual reviews and performance checks… Comms and media handling 19. Water security and water company investment are issues that attract national media attention, and we would expect the publication of the WRMPs by individual water companies to be picked up widely, although this may be staggered depending on the individual publication dates. We will take a proactive approach with further details laid out in a full comms plan to follow. 20. We would expect some local negative media around some of the more controversial projects and would prepare reactive lines for those specific schemes.”
“As part of giving careful consideration as to whether to approve the publication of your WRMP, the Secretary of State has concluded that the strategic need for the following projects has been demonstrated: 1. The South-East Strategic Reservoir Option, being a new 150 million cubic metres (Mm3) reservoir in Oxfordshire; 2. The Teddington Direct River Abstraction, being a new abstraction on the River Thames upstream of Teddington Weir, supported by recycled water, to provide up to 75 million litres per day in drought conditions; and 3. Any water resources solution that, through the adaptive pathways set out in section 11 (The Overall Best Value Plan) of the WRMP, is identified as forming part of the best value plan.”
“1…the Project would •be for a complex and substantial scheme, involving extensive infrastructure works and requiring multiple powers and consents (including multiple planning permissions, compulsory acquisition powers and highway orders), and is therefore seen as a nationally significant development in its own right; and • benefit from an application being determined in a timely and consistent manner by the Secretary of State, and by removing the need for, and planning uncertainty of applying for, a large number of separate powers and consents. 2. Furthermore the Principal Development would • play an important role in contributing to a secure water supply for people in the South East of England, mitigate local flooding, and add flexibility and greater resilience capability across the water resources network. • be recognised as a needed and important piece of infrastructure in the WRSE regional plan and TWUL’s published WRMP24. Additionally, the Project is identified as a key piece of infrastructure in Affinity Water’s published WRMP24 and Southern Water’s draft WRMP24.”
“…What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that:- 1. Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. 2. The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. 3. The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. 4. An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. 5. Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. 6. Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer…”
“…the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.”
“(d) What is required in a given context 39 Although the courts cannot and have not purported to lay down rules of general application, there is a broad consensus in the decisions of appellate courts as to the factors that affect what is required in a given context. That consensus runs from Lord Upjohn’s important statement in Durayappah v Fernando[1967] 2 AC 337 , 349 to the refinements in more recent cases such as Lloyd v McMahon[1987] AC 625 , 702, and Doody’s and Osborn’s cases. The factors include the nature of the function under consideration, the statutory or other framework in which the decision-maker operates, the circumstances in which he or she is entitled to act and the range of decisions open to him or her, the interest of the person affected, the effect of the decision on that person’s rights or interests, that is, the seriousness of the consequences for that person. The nature of the function may involve fact-finding, assessments of matters such as character and present mental state, predictions as to future mental state and risk, or policy-making. The decision-maker may have a broad discretion as to what to do, or may be required to take into account certain matters, or to give them particular or even dispositive weight. The decision may affect the individual’s rights and interests, and its effect can vary from a minor inconvenience to a significant detriment.”
“42 The requirements of procedural fairness depend upon a number of factors including the facts, the nature of the decision-making process and the statutory framework:.. In another context, the Court of Appeal has observed that a process of consultation may require that those who have a potential interest in the subject matter are told enough about the proposal to enable them to make an intelligent response but “consultation is not litigation” and the consulting authority is not obliged to reveal every submission it receives: see R v North and East Devon Health Authority, Ex p Coughlan[2001] QB 213 at para 112.”
“80 What fairness requires of the board depends on the circumstances. As these can vary greatly from one case to another, it is impossible to lay down rules of universal application. The court can however give some general guidance. 81 Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West[2005] 1 WLR 350 , the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. It is presumably because of the possibility of such assistance that the board must hold an oral hearing under rule 11(2)(a) in any case where an indeterminate sentence prisoner appears to the single member panel to be potentially suitable for release or for a transfer to open conditions. The assumption must be that an oral hearing has the potential to make a difference. But that potential may also exist in other cases. The board’s annual report for 2005-2006 contains a statement by a psychiatrist member of the board which demonstrates how valuable oral hearings can be: “I find the oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner.” 82 The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to respect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face-to-face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him… 96 Thirdly, since the effect of the refusal of an oral hearing is that the provisional decision becomes final, it follows that an oral hearing should be granted in any case where it would be unfair to the prisoner for that to happen. For example, if the representations made in support of the prisoner’s request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoner’s future management in prison or on his future reviews, such as reports of poor behaviour or recommendations that particular courses should be undertaken to reduce risk, it will usually follow that an oral hearing should be allowed for that reason alone, even if there is no doubt that the prisoner should remain in custody or in closed conditions:…” “I find the oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner.”
“…The question, however, is not whether principles of procedural fairness are in play, but rather their application not just generally (it being the effect of the concessions made by both sides that there is no bright line that an oral hearing is always or never required), but specifically having regard to the circumstances of the case.”
“55 Doody concerned fairness as between the state and an individual citizen. The same principle is relevant also to planning decisions, the legality of which may be of legitimate interest to a much wider range of parties, private and public: see Walton v Scottish Ministers[2013] PTSR 51 , paras 152—153per Lord Hope of Craighead DPSC. Here a further common law principle is in play. Lord Bridge saw the statutory duty to give reasons as the analogue of the common law principle that “justice should not only be done, but also be seen to be done” (see para 25 above). That principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the courts:…”
“[75] The requirements of fairness in considering whether or not to re-consult must start from an understanding of any differences between the proposal and material consulted upon and the decision that the public body in fact intends to proceed to make. This is because there will have already been consultation. The issue is, then, whether it is fair to proceed to make the decision without consultation on the differences, which will therefore be heavily influenced in this particular context by the nature and extent of the differences. Whilst it is not possible to produce any exhaustive list of the kind of matters that would need to be considered (alongside all the other legal principles set out above) to determine whether re-consultation is required, some illustrations may assist. Examples would include where it has been determined that it is necessary to re-open key decisions in a staged decision-making process which had already been settled prior to consultation occurring; or where the key criteria set out for determining the decision and against which the consultation occurred have been changed; or where a central or vital evidential premise of the proposed decision on which the consultation was based has been completely falsified. These examples serve to illustrate the very high order of the significance of any difference which would warrant re-consultation. [76] It is also important to point out that the question of a change’s significance is not to be determined with the benefit of hindsight: it is significance at the point in time when the question of re-consultation is to be determined that counts. Finally, the fact that a change arises so as to reflect views produced by the consultation process does not itself require re-consultation. Once again, it is the extent of the change or difference which is the starting point. If the change arose from the original consultation that is simply evidence of the fourth Sedley criterion in operation and not in and of itself a reason for re-consultation. It is the extent of the change which requires examination. [77] Having observed all of the above in relation to the legal principles governing consultation it is important to recognise, as the courts have on several occasions, that a decision-maker will have a broad discretion as to how a consultation exercise may be structured and carried out. As Sullivan J (as he then was) observed in R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry[2007] EWHC 311 (Admin) ,[2007] All ER (D) 192 (Feb) (paras [62] and [63]): ‘A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out … In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went “clearly and radically” wrong.’ Subsequently, in the case of R (on the application of Baird) v Environment Agency[2011] EWHC 939 (Admin) ,[2011] All ER (D) 225 (Mar) Sullivan LJ confirmed that the ‘test is whether the process was so unfair as to be unlawful’.” ‘A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out … In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went “clearly and radically” wrong.’ Subsequently, in the case of R (on the application of Baird) v Environment Agency[2011] EWHC 939 (Admin) ,[2011] All ER (D) 225 (Mar) Sullivan LJ confirmed that the ‘test is whether the process was so unfair as to be unlawful’.”
“The critical question is whether, given the facts, the nature of the issues raised and the statutory requirements of the decision-making process, further procedural steps need to be taken to ensure procedural fairness in the particular case. It is important to consider the issues said to require the appointment of an independent expert to test or “interrogate” those issues and to report to the Secretary of State. As Holgate J. said (at [119]), “[an] important consideration is whether the claimants can show that there was a significant issue in the redetermination which ought, as a matter of fairness, to have been the subject a hearing under section 91” or, we would add, which necessitated the appointment of an independent expert to conduct an inquisitorial process to assess the issue.”
“70. As for the question of “alternatives”, the interested parties, including Save Stonehenge, were well able to make written representations to the minister. And the minister, and his department, were well able to, and did, consider those representations and seek further information where necessary. That is what the judge found (at [117]), and we agree. Although the examining authority had not itself considered alternatives when it prepared its report, this does not mean that the minister is required to create an equivalent inquisitorial process when he comes to determine, or redetermine, an application. Procedural fairness does not require that, either generally or on the facts of this particular case.”
“not one of expediency, nor was it one of general discretion. He had a discretion to dispense with the holding the public inquiry only if he was satisfied that it was unnecessary to hold one.”
“where issues which were raised by proposals and objections were confined to issues between one individual and another, where they only affected a few individuals without to any material extent any group of the public having any genuine public interest, it seemed very likely that the Minister concerned could be satisfied, properly directing himself that a public inquiry was not necessary. But in this case, there were two groups each with general public interests; the local residents interested in safety and protection from noise, and those members of the public interested in Highclere, both because of their interest in its historical features and because of their right to access to part of it. He did not see how any reasonable Minister could have been satisfied that he could weigh those conflicting interests without the benefit of a public inquiry at which the two groups in conflict would, in a sense, be confronted with each other and at which witnesses, including expert witnesses, would be heard and cross-examined so that an inspector who heard all the evidence and representations could marshal and weigh it all and report on it to the Minister. Nor did he see how in this case, where 70 objections had been received, 21 of which had asked for a public inquiry, and where petitions containing 210 signatures to the proposals had also been received, and where matters of expertise such as the effects of noise and the possibilities and effects of landscape were relevant, it would be possible reasonably to have decided that those with the right to make objections could have those objections properly taken into account without the holding of a public inquiry.”
“…adequately and properly addressed all those matters relevant to his decision not to hold a local inquiry. He was satisfied that he was in a position to take account of the representations made (paragraph 156) and to weigh the information received (paragraph 158). Thus the criteria identified by Webster J. in BINNEY were addressed, I accept that the argument that scientific and economic issues ought to be considered and tested in public is a strong one: but the Secretary of State applied himself to these matters and decided not to order an inquiry. In my judgment he was entitled to take this course given the consultations that had taken place and the information that was available to him. The ministers' assertion that that information and argument "provides an adequate basis for them to inform themselves of the weight and substance of the concerns of all interested parties, and to assess and weigh that information and argument" cannot be faulted.”
“…But Parliament entrusted the ministers with responsibility for making the relevant decisions and gave the Secretary of State a discretion as to whether or not to direct a local inquiry. Provided the Secretary of State applied his mind genuinely and rationally to the issue of whether or not to hold a public inquiry. his decision cannot be impugned. In this case, there is no evidence that the Secretary of State failed so to apply his mind.”
“If a nationally significant infrastructure project is included in a published final water resources management plan, the ‘need’ for that scheme will have been demonstrated in line with government policy. The applicable statutory requirements, and ‘need’ would not be expected to be revisited as part of the application for development consent. The Examining Authority and the Secretary of State would then start their assessment of applications for infrastructure covered by the National Policy Statement on that basis.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“146 …it is also common ground that the court should start from the position that the Secretary of State, (and indeed Ofwat and the EA), are familiar with the statutory framework and relevant provisions. They are to be taken as having understood them correctly unless there is a sufficient, positive contra-indication within the Plan itself or other relevant documents… Furthermore, the internal records of the decision-making process and the formal decision documents should be read fairly and with an appropriate degree of benevolence when seeking to understand how a decision was reached, or policies formulated. The documents must be read as a whole and in the context of the material and the issues with which the defendant and officials may be presumed to be familiar. They must not be read in an overly forensic or legalistic way… 148 … it is said that the Secretary of State failed to take into account various relevant considerations which were “obviously material”… It is insufficient for a claimant simply to say that the decision-maker failed to take into account a material consideration. Such a consideration is only something which is not irrelevant and which a decision-maker is empowered to take into account. A decision-maker does not fail to take into account a material consideration into account unless he was under an obligation to do so. 149 Accordingly, a claimant must show that the decision-maker was expressly or impliedly required by the legislation to take the particular consideration into account, or that, in the circumstances of the case, the matter was so obviously material that it was irrational for the decision-maker not to have taken it into account. A factor is obviously material if a failure to give direct consideration to it would not accord with the intention of the legislation. The test is not to be applied at large but in the context of the nature, scope and purpose of the legislation in question..”
“12. There is local interest, but we feel this should be balanced with the urgent need to improve the resilience of water supplies in the South East and the water environment. An inquiry will probably delay development by approximately a year.”