Why judicial review is crucial to address the failures in the SESRO approval process

In late August 2024, Secretary of State for Environment, Food and Rural Affairs, Steve Reed, approved a 150 million cubic metre reservoir near Abingdon without any public inquiry, analysis or debate. A recent High Court claim posits that in doing so, the Secretary ignored his statutory duties, placing the interests of a few above the many. 

The proposal for the massive new reservoir, known as the South East Strategic Reservoir Option (SESRO), is led by Thames Water and Affinity Water. The project is not an entirely new concept; a smaller reservoir, with a capacity of 100 million cubic metres, was proposed by Thames Water years ago. Following a public inquiry in 2010 and 2011, that scheme was rejected by both an inspector and the then-Secretary of State on the basis that the ‘need’ for the project had not been sufficiently demonstrated and that viable alternatives were possible. 

The need for an inquiry

Fast forward to August 2024 and, in a simply baffling move, Steve Reed approved a scheme for a reservoir 50% larger, yet offered no similar inquiry process to adequately scrutinise its necessity or implications.

While it is true that under the relevant regulations, the Secretary of State has sole authority to mandate a hearing or inquiry if either ‘unresolved issues’ or ‘significant public interest’ are present, common law duties generally lead secretaries to set up inquiries. This is because, for an inquiry to be deemed unnecessary, a secretary ought to be confident that he or she can weigh conflicting issues, while ensuring that those with the right to make representations are properly taken into account. In this case, the level and variety of public interest seems more than sufficient to warrant an inquiry. 

Local authorities, members of parliament and thousands of residents have submitted letters of concern. Moreover, there are a host of ‘unresolved issues’, particularly concerning the necessity of the reservoir, especially when many stakeholders argue that other options, such as water efficiency measures or alternative storage solutions, have not been fully explored. These are complex matters and precisely the kinds of issues that are best addressed through the thorough and impartial scrutiny of a public inquiry. Despite this, Steve Reed has still deemed one unnecessary.

Steve Reed has rooted his rationale behind fast-tracking this decision to the ‘urgent need’ for additional water capacity to meet future demand (as it stands, the reservoir will not open until 2040). In citing an ‘urgent need’, the Secretary has assumed for himself what ought to be proven as true via expert insight and analysis. Instead of holding a public inquiry to inform his decision-making, the Secretary has made himself the sole proprietor of truth on the matter. In skipping a public inquiry, he has effectively accepted the water companies ‘need’ without question and without satisfactory explanation made to the public.

This approach is both counterintuitive and troubling. Historically, even during contentious projects, such as Stevenage New Town, where stakeholders were determined to push through the development, the need for an inquiry was recognised as essential. To dismiss an inquiry in this case undermines the fundamental principles of transparency and procedural fairness.

Conclusion

This is not to opine on the legal correctness of the government’s position: the courts will do this. However, what is clear now is that the refusal to conduct a public inquiry risks undermining the essential principles of transparency and accountability. Public inquiries are not merely box ticking bureaucratic procedures, they are vital mechanisms for ensuring that the concerns of all the stakeholders are heard and that decisions are made on the basis of sound, well-examined evidence.

Until a proper investigatory process is undertaken, the debate surrounding the SESRO will continue to be led from the shadows by a new government who has largely concealed its decision-making process from the public. This is not a situation that promotes public trust nor does it uphold the integrity of the office in which such decisions are made.