Judge orders Environment Agency to draw up plan within eight weeks to tackle water abstraction in Norfolk Broads

The High Court has given the Environment Agency (EA) eight weeks to devise a plan to deal with water abstraction issues in parts of the Norfolk Broads.

This followed Mr Justice Johnson having ruled last month in favour of claims by residents Timothy and Angelika Harris against the regulator by finding that that certain European nature conservation laws remain enforceable against the EA despite the UK having left the European Union.

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

In Harris & Anor v The Environment Agency [2022] EWHC 2606 (Admin) Johnson J considered representations from both parties over what remedy he should grant.

The Harrises argued the EA should within eight weeks publish full details of the measures it intends to take, together with the scientific and technical methodologies underpinning them for Ant Broads and Marshes, Broad Fen, Dilham and Alderfen Broad special sites of scientific interest.

They also asked for deadlines for the start and end of each measure identified by the EA and that it should file each completion with the court.

Johnson J noted: “They submit that their proposed order is based on, and is justified by, the judgment.

“They contend that nothing short of an order in these terms will ensure that the Environment Agency now urgently takes effective measures to address an ongoing risk of ecological harm.”

The EA though argued the Harrises’ proposed order “impermissibly goes beyond the court's functions, by applying a programme of supervision and control of the Environment Agency's future compliance with its statutory duties”

It said that as a responsible public body it could be trusted to comply with its legal obligations, and that a requirement to provide full details of the proposed measures, along with deadlines and explanations, was “imprecise and is liable to give rise to difficulty” and that in any event three months should be allowed for compliance.

Johnson J said the Harrises had “not just a presumptive common law right to a remedy, but also a statutory right.

“That is because the Environment Agency has acted in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive. The court is required to enforce these provisions as a matter of domestic law: section 4(1)(b) of the European Union (Withdrawal) Act 2018.”

The judge said the EA had “not given any good reason why the court should withhold a remedy from the claimants [and] the fact that it is a public body and can be expected to comply with the court's judgment is no answer”.

To accept that would deprive the right to an effective remedy of any meaningful content and he noted it had failed over many years to comply with the Habitats Regulations and the Habitats Directive.

But Johnson J said it would be inappropriate for the court to set out the precise steps the EA must take to discharge its obligations.

He said under his proposed order the EA retained a choice as to how it discharges its obligations, but has no choice about whether it discharged them.

“Making an order that the Environment Agency formulates a plan does not involve the court wrongly stepping into the shoes of the Environment Agency and making decisions that are for the Environment Agency, not the court, to make”, the judge said.

Johnson J concluded he should not require the EA to follow its plan as “it is not possible to predict how the plan will evolve and develop in the light of further scientific and technical work [and] it is unlikely that a plan formulated in the next 8 weeks will survive wholly intact as the detail is worked through”.

He said the court could not become involved in a rolling supervision programme of the EA’s decision making,

Under the terms of the order issued the EA must by 4pm on 7 December provide to the Harrises details of the measures it intends to take to comply with its duties under Article 6(2) of the Habitats Directive in respect of The Broads Special Area of Conservation.

It must include an indication of when it intends to complete those measures, and give the scientific and technical basis for its assessment of the measures that are necessary to comply with Art 6(2).

Mark Smulian