Today ERCS made a complaint to Environmental Standards Scotland regarding the government’s unlawful approach to the designation of bathing waters in Scotland.
‘Bathing waters’ are areas which are popular for bathing, and can include rivers, inland lochs, and seas. The reason why communities want designated ‘bathing water’ status is because water quality is monitored at these sites, helping to protect bathers from health risks such as sewage pollution.
What the law says
The Bathing Waters (Scotland) Regulations 2008 require the Scottish Government to designate a bathing water where they expect a ‘large number’ of people to bathe there.
The Scottish Government’s interpretation of a ‘large number’ is that it requires a minimum of 150 people to have used a beach or bathing water over a single day. This compares poorly to the rest of the UK.
Bathing waters guidance for England states that there is ‘no set limit’ of bathers required for designation.
The guidance for Wales explains that, ‘We have not set a numerical figure on the numbers of bathers, as all bathing waters are different and one figure may not be suitable for all sites’.
The Northern Irish guidance has a much lower threshold of ‘over 45 bathers on at least one occasion or over 100 beach users on at least two occasions across a review period’.
Scotland is the most difficult part of the UK to have a bathing water designated. The Scottish Government’s 150 people minimum threshold means that the designation of any bathing waters on rivers or smaller beaches which are popular bathing sites is effectively impossible, due to the high minimum bathers threshold.
The need for reform
The recent refusal of bathing water status for Almondell in West Lothian shows how the Scottish Government’s approach is a barrier to designating bathing waters. The Scottish Government refused that application in May 2022 because the application ‘did not demonstrate large numbers of bathers’.
The 150 bathers minimum threshold is far in excess of any reasonable definition of a large number. It also precludes the Scottish Government from considering the various other matters which it is supposed to have regard to when deciding whether to designate.
The application process is also problematic. The Scottish Government limits the types of evidence which can be used to support an application (for example excluding survey numbers taken during organised events) without justification.
ERCS has raised this issue directly with the Scottish Government without success. We are hopeful that Environmental Standards Scotland will take the necessary enforcement action to ensure that the Scottish Government removes the minimum threshold entirely, and addresses the deficiencies in the application process.
