In Harris and another v Environment Agency [2022] EWHC 2264 (Admin), the High Court held that the Environment Agency had failed to take appropriate steps to ensure licensed water abstraction was not leading to the deterioration of protected habitats and species in Norfolk by limiting their investigation to just three sites of special scientific interest.
The claimants, Angelika and Timothy Harris, live in the Norfolk Broads and brought their case owing to concerns about damage that water abstraction was doing to legally protected ecosystems. Water abstraction can reduce the through-flow of base-rich water, which changes the ground chemistry and can impact surface ecology and damage wetland ecosystems. Therefore, licences are required to conduct such abstraction. The review of abstraction licences is the responsibility of the EA.
The claimants’ case relied on four grounds:
- The EA was in breach of its Article 6(2) obligation under the EU Habitats Directive (92/43/EEC) to avoid the deterioration of protected habitats and disturbance of protected species.
- Regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 requires the EA to have regard to the Habitats Directive.
- Irrespective of the Habitats Regulations, Article 6(2) of the Habitats Directive is enforceable by the domestic courts.
- The EA’s decision not to conduct an expansive investigation into the impact of licensed water abstraction was irrational.
The Habitats Directive requires action to be taken in special areas of conservation to avoid the deterioration of natural habitats and species. This can require pre-emptive action. The Habitats Regulations transposed the Habitats Directive in England and Wales and placed the duty for compliance with the directive with the secretary of state, nature conservation bodies and competent authorities (which includes the EA). Therefore, if licensed water abstraction may be a risk to a protected habitat or species, the EA is obligated to conduct a robust review of the licences.
The EA disputed that it was obliged to do anything further than “have regard” for Article 6(2) of the Habitats Directive and, regardless, said they were acting in accordance with that article. The EA reviewed 240 abstraction licences but limited the investigation of their impact to just three SSSIs. A lack of resources was argued to be one of the reasons for this.
Although the court was hesitant to question the EA’s expert assessment as to what steps should be taken, it was found that it is not open to the EA to take no steps at all once a potential risk has been highlighted. To limit its investigation in such a way was in breach of its obligation under the Habitats Regulations to have regard for the requirements of Article 6(2) of the Habitats Directive. Therefore, the claim succeeded.
Elizabeth Mutter is a solicitor in the planning and environmental team at Irwin Mitchell
