Claimants win judicial review challenge against Environment Agency over water abstraction in Norfolk Broads

The High Court has ruled in a case involving water abstraction that certain European nature conservation laws remain enforceable against the Environment Agency (EA) despite the UK having left the European Union.

Claimants Timothy and Angelika Harris argued that water abstraction in the Norfolk Broads was causing irremediable damage to the environment, including legally protected ecosystems.

They argued the EA should review more broadly the impact of water abstraction to decide whether licences should also be withdrawn or altered and challenged its refusal to expand the scope of an investigation into 240 licences.

Mr and Mrs Harris argued the EA was in breach of an obligation under article 6(2) of the EU Habitats Directive (92/43/EEC) to avoid the deterioration of protected habitats and disturbance of protected species.

They also argued that the obligation under article 6(2) of the Habitats Directive has effect in domestic law by reason of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 which requires the it to “have regard” to the Habitats Directive and that article 6(2) is enforceable by the domestic courts.

A further ground was that the EA’s decision not to conduct a more expansive investigation into the impact of licensed water abstraction was irrational.

The EA told the court it accepted it must have regard to article 6(2) of the Habitats Directive but said it had done so.

After taking it into account, it had reasonably decided to limit its investigation of the impact of the 240 licences. It disputed that article 6(2) had direct effect in domestic law beyond the obligation to ‘have regard’ to it.

In Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) Mr Justice Johnson said in his judgment the EA’s decision not to expand the investigation “was not necessarily inconsistent with article 6(2)”, but added that the EA’s problem was that its programme of works “will not discharge the article 6(2) obligation”.

The judge explained: “Having committed itself to discharge that obligation, it was irrational for the Environment Agency not to expand the Restoring Sustainable Abstraction programme without having any alternative mechanism in place that could ensure compliance with article 6(2).

“It follows that even if…it is not enforceable by the High Court, the Environment Agency's decision is flawed on common law grounds.” He said he would make directions on granting relief.

Law firm Freeths, which acted for Mr & Mrs Harris said: “In deciding the case, the court recognised and applied a key, but little-known, legal provision in the UK’s EU-exit legislation.

“This says that, even though the UK has left the EU, rules in European Directives remain enforceable against UK public authorities if those rules had been recognised by a court as being enforceable prior to Brexit.” 

It noted the court also ruled that a lack of EA funding was not a valid justification for failing to comply with its legal duties, even though funding could be relevant to how those duties may be met. 

Penny Simpson, environmental law partner at Freeths, said: “For the UK as a whole, this case has wide-reaching implications.

“It recognises that, even though the UK has left the EU, the UK has not escaped the direct influence of European Directives if, prior to Brexit, those rules had been found by a court to be directly enforceable against public authorities.

“Where this applies, individuals can continue to rely upon those rules against public authorities. This would be the case even if Parliament were to amend or remove specific existing domestic legislation which implements a European Directive.”

Ms Simpson noted European Directives covered many other matters including consumer protection, energy, health and safety, finance and data protection, and “we can expect to see other cases like this come forward in other areas”.

Mark Smulian