Public has no right to swim in sea, claims firm that dumped sewage at bathing spot

South West Water is claiming it has no legal obligation to keep rivers and seawater clean of sewage in its defence against a Devon swimmer who is taking the water company to court.

Jo Bateman, who attempts to swim every day off the coast of Exmouth, is taking legal action against South West Water, claiming its frequent sewage discharges into the sea have taken away her legal right to a public “amenity”.

However, in its defence to Ms Bateman’s claim, seen by i, the water firm states no one has a legal right to swim in the sea.

Despite owning the sewage network in Devon and Cornwall, South West Water also claimed it has no legal responsibility to keep the rivers and sea in the counties clean and clear of sewage. Water companies are, however, subject to regulation enforced by the Government and Environment Agency (EA).

The company said Ms Bateman’s claim has “no basis in law” and requested that the case be struck out and, instead, go to mediation.

Ms Bateman told i: “There is no chance I will go to mediation just to hear their public relations guff about how well they’re doing to improve the sewage network. I want to see them in court and that’s what I will do.”

On Thursday, figures from the EA showed that South West Water was one of the UK’s biggest polluters, and was responsible for three of the 10 worst pollution spots across England in 2023.

This week, i revealed the EA was investigating all South West Water’s sewage overflows since December.

Water companies are only permitted to discharge sewage into rivers or the sea if adverse weather conditions cause storm overflows. To do so in moderate weather conditions can be considered illegal.

In its defence against Ms Bateman’s claim that she has lost an amenity she is entitled to, South West Water states: “The law does not recognise such rights, nor does the law impose a duty on South West Water.”

For wild swimming – outside the bathing season – there is no legal duty to achieve a certain water quality standard, the firm said.

Its added that even during the peak summer holiday season, South West Water and other firms have no duty to meet certain water quality standards.

The defence states: “Even during the bathing season, there is no absolute right to swim each day.”

South West Water said it is the responsibility of the Government and the EA to ensure clean water, not the water companies that manage the nation’s rivers and coastline.

Neither the Department of Environment, Food and Rural Affairs nor the EA would comment on South West Water’s claims.

While rejecting Ms Bateman’s claims, South West Water acknowledged her “understandable concern about the environment”, adding “it is a concern shared by many of South West Water’s customers, and by South West Water itself”.

The firm has said it is investing record amounts to reduce the use of permitted storm overflows across the region, including £38m earmarked for Exmouth up to 2030.

Ms Bateman, who is claiming compensation of £379.50, has submitted an action to the Small Claims Court, alleging illegal sewage spills have affected both her physical and mental wellbeing.

She has detailed 54 instances when she believes the water company illegally dumped sewage into the sea during 2023. Ms Bateman is claiming the company’s pollution of the Exmouth coast has led to what is legally known as a loss of amenity, which means she must prove she has been injured.

Ms Bateman added: “Their defence is 16 pages of guff. They’ve said things like, I don’t have a legal right to swim in the sea, which, of course, is absolutely rubbish.

“It’s widely documented that you have a right to go in what are described as tidal and navigable waters, which obviously includes Exmouth’s beach and the River Exe.”

Who owns the UK’s seas?

When it comes to who owns the UK’s beaches and seas, it may not surprise many that King Charles III features heavily.

The Crown Estate, the monarch’s land and property company, controls about 45 per cent of the foreshore – the part of the shore or beach that is wet due to the varying tide and wave run-up under normal conditions – in England, Wales and Northern Ireland. 

The remaining beaches are in a variety of hands, from the National Trust and Ministry of Defence, to local authorities and private individuals.

As for the sea itself, we turn again to the King. The Crown Estate owns the territorial seabed out to 12 nautical miles and, for example, if you fancy harvesting some seaweed for any form of monetary or other reward you will require a licence from the Crown.

Many clean water campaigners dispute South West Water’s claims.

The Outdoor Swimming Society believes there is a right to swim in tidal and navigable waters. The coastline in Exmouth is both tidal and navigable.

It states “there is a public right of navigation” on all rivers and coastlines that can be navigated by any non-powered boat, and therefore “a right to swim”.

Kate Rew, co-founder of the society, added: “As human beings, we have the same right to clean water as we do to clean air.”

Daniel Start, the author of Wild Swimming, said: “Everyone is legally entitled to swim in the sea or tidal waters.”

Geoff Crawford, co-founder of End Sewage Convoys And Poollution Exmouth, criticised South West Water’s response to Ms Bateman’s claim.

“I believe that the company has both a legal and moral obligation to not pollute, to minimise pollution and use of emergency overflows to a minimum and to treat sewage as they are contractually obliged to do, not to discharge, overflow and dump it in our rivers, seas and wildlife sanctuaries.

“They seem to have and even speak with an utter contempt for anything other than maximum profit.”

However, a solicitor familiar with swimming rights suggests the law is not as clear as campaigners suggest.

Nathan Willmott, a partner at law firm Ashurst, said: “The statutory regime governing water companies has been held by the courts to cancel out certain common law rights that water users would otherwise have against water companies for allowing sewage discharge into the water and making it unsafe to swim in.”

But he suggested that if South West Water were to be found guilty of breaching the regulations on when sewage can been spilled into the sea, then its immunity from prosecution may not apply.

South West Water declined to comment on an ongoing legal case.

The water regulator Ofwat was contacted for comment.

The law on prosecuting water companies over sewage spills

The law around whether an individual can take legal action against sewage discharges appears to provide immunity to water companies if they are abiding by the Environment Agency (EA) regulations on spills.

David Green, a senior partner at law firm Edwin Coe, refers to a 2022 Court of Appeal decision in The Manchester Ship Canal Company v United Utilities Water case.

In 2022, a Court of Appeal decision found claims against water companies, that may have existed under common law, were withdrawn by the Water Industry Act 1991. It meant that if sewage discharges were due to an inadequate infrastructure, then the companies were not legally liable.

The ruling agreed that United Utilities’ regular discharges of untreated sewage into Manchester Ship Canal would, in common law, give rise to a legitimate damages claims. It was also undisputed that discharging untreated sewage was a breach of the EA regulations. 

Mr Greene agrees with South West Water’s claim that “the regulatory regime is enforceable ultimately by government”. 

However, Mr Greene added that the Court of Appeal’s judgement left open the possibility that common law claims could be valid for discharges caused not by “policy” or “capital expenditure” decisions but rather “operational” or “current expenditure” issues.  

“Whatever the conceptual tenability of this distinction, obtaining evidence pointing to an ‘operational’ decision leading to discharge is likely to be challenging,” added Mr Greene.

Nathan Willmott, a partner at law firm Ashurst, shared Mr Greene’s assessment.

He added: “While certain common law claims may persist – for example where the reason for the sewage release is ‘operational’ rather than infrastructure based – there is little incentive on the part of the water companies to prevent those releases of untreated sewage into rivers as there is little or no risk of civil claims being pursued against them.”