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


Subscribe to IEMA's newsletters to receive timely articles, expert opinions, event announcements, and much more, directly in your inbox.

Transform articles

Fifth of UK food firms unprepared for deforestation regulation

One in five UK food businesses are not prepared for EU Deforestation Regulation (EUDR) coming into force in December, a new survey has uncovered.

16th May 2024

Read more

Regulatory gaps between the EU and UK are beginning to appear, warns Neil Howe in this edition’s environmental legislation round-up

4th April 2024

Read more

Dr Julie Riggs issues a call to arms to tackle a modern-day human tragedy

15th March 2024

Read more

The UK’s new biodiversity net gain (BNG) requirements could create 15,000 hectares of woodlands, heath, grasslands, and wetlands and absorb 650,000 tonnes of carbon each year.

13th March 2024

Read more

Campaign group Wild Justice has accused the UK government of trying to relax pollution rules for housebuilders “through the backdoor”.

14th February 2024

Read more

Digital tracking, packaging data delays and new collections provide a waste focus for this edition’s environmental round-up by legislation expert Neil Howe

28th November 2023

Read more

Environmental crimes could result in prison sentences of up to 10 years and company fines of 5% of turnover under a proposed EU law agreed by the European parliament and council.

21st November 2023

Read more

Media enquires

Looking for an expert to speak at an event or comment on an item in the news?

Find an expert

IEMA Cookie Notice

Clicking the ‘Accept all’ button means you are accepting analytics and third-party cookies. Our website uses necessary cookies which are required in order to make our website work. In addition to these, we use analytics and third-party cookies to optimise site functionality and give you the best possible experience. To control which cookies are set, click ‘Settings’. To learn more about cookies, how we use them on our website and how to change your cookie settings please view our cookie policy.

Manage cookie settings

Our use of cookies

You can learn more detailed information in our cookie policy.

Some cookies are essential, but non-essential cookies help us to improve the experience on our site by providing insights into how the site is being used. To maintain privacy management, this relies on cookie identifiers. Resetting or deleting your browser cookies will reset these preferences.

Essential cookies

These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.

Analytics cookies

These cookies allow us to recognise and count the number of visitors to our website and to see how visitors move around our website when they are using it. This helps us to improve the way our website works.

Advertising cookies

These cookies allow us to tailor advertising to you based on your interests. If you do not accept these cookies, you will still see adverts, but these will be more generic.

Save and close