Landmark case against the Environment Agency

24th November 2022

The claimants in Harris v Environment Agency applied for judicial review of the Agency’s refusal to expand the scope of an investigation into the effect of groundwater abstraction from wetland sites across the Norfolk Broads.

The Agency was responsible for the grant, variation and revocation of licences for groundwater abstraction for agricultural and other purposes. The claimants, who lived on the Norfolk Broads, were concerned that abstraction was causing irreparable damage to the environment, including legally protected ecosystems.

The Norfolk Broads include a Special Area of Conservation (SAC) and a Special Protection Area for birds, both made up of Sites of Special Scientific Interest (SSSIs). These were designated as European sites and protected under the EU’s 1992 Habitats Directive.

In 1994 the Agency had to review all abstraction licences granted before 30 October 1994 that were likely to have a significant effect on any European site. It then established a renewals statement with Natural England to allow it to indicate concerns about particular licence renewals. In 1999 it started restoring sustainable abstraction to investigate and resolve environmental damage caused by unsustainable water abstraction. Around 500 sites, mostly SSSIs, were identified as being at risk. The programme was closed to new sites in 2012, and the Agency initiated a new investigation to consider the effect of 240 abstraction licences, which it decided to limit to three SSSIs in the SAC.

The claimants said the Agency had breached its obligation under Article 6 of the Habitats Directive to avoid deterioration of protected habitats and disturbance of protected species in SACs. They said that this was because it had been required to consider the impact of licences across the entire SAC and address potential risks to other sites, and that it was irrational not to allow more expansive investigation.

In this context, it was concluded that the Agency was effectively the sole public body responsible for determining whether abstraction licences should be granted, varied or revoked. If it did not secure the Habitats Directive’s requirements regarding those decisions, no other public body could fill the gap. This meant the Agency had to take the requirements of the Habitats Directive into account and discharge them.

The court also ruled on whether the Habitats Directive was enforceable by a UK court, seeing as it was implementated by the EU’s Conservation of Habitats and Species Regulations 2017. The court concluded that it was, and had to be enforced accordingly.

The review had not ensured that abstraction did not damage protected sites, and there remained a risk, particularly under permanent licences, across the entire SAC. It was sufficient that a generalised risk had been established for steps to be required under the Habitats Directive. Regarding time limited licences, the renewals communique process and the application of lessons learned from the programme when considering licence renewals were, in principle, capable of complying with Article 6 and applied to new applications.

However, there were limitations to the ongoing work on permanent licences, and the Agency had not complied with Article 6. It had also not justified its failure to take steps regarding the risks, particularly those posed by abstraction in accordance with permanent licence, and it was in breach of its obligation under the Habitats Regulations.

The Agency’s programme of works would not discharge the Article 6 obligation. Having committed itself to discharge that obligation, it had been irrational for the Agency not to expand the programme without having any alternative mechanism to ensure compliance with it.

The application for judicial review was granted.

Image credit | Shutterstock

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