Environment – Protection – Water abstraction – Claimants applying for judicial review of refusal of defendant Environment Agency to expand scope of investigation into effect of water abstraction – Whether defendant failing to sufficiently safeguard protected species from the adverse effects of licensed water abstraction for farming and other purposes – Whether defendant adopting unduly narrow scope of investigation – Application granted
The claimants lived at Catfield Hall in the Norfolk Broads. They were concerned that licensed water abstraction for farming and other purposes was causing irremediable damage to the environment, including ecosystems that were legally protected. Their intervention was instrumental in the decision of the defendant Environment Agency not to renew two abstraction licences. The claimants believed that the defendant ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered.
They applied for judicial review of the defendant’s refusal to expand the scope of an investigation that it conducted into the effect of 240 licences for abstraction. That investigation concerned the effect of abstraction on just three sites of special scientific interest (SSSIs).
The court was asked to determine: (i) the ambit of the obligation, under regulation 9(3) of the Conservation of Habitats and Species Regulations 2017, to “have regard” to the requirements of EU Directive 92/43/EEC (the Habitats Directive), including whether that mandated compliance with article 6(2) of the Habitats Directive; (ii) whether article 6(2) imposed an obligation of a kind recognised by the European Court of Justice or any court or tribunal in the UK in a case decided before 2021; (iii) whether the defendant had breached article 6(2) by limiting its investigation of water abstraction to the three SSSIs; and (iv) whether the defendant acted irrationally by so limiting its investigation.
Held: The application was granted.
(1) Regulation 9(3) of the Habitats Regulations obliged the defendant to have regard to the requirements of article 6(2) of the Habitats Directive which imposed an obligation to review the applicable licences. Regulation 9(3) was concerned with a “competent authority”. That had a broad meaning (including every public body). In some contexts, different competent authorities might have overlapping roles that were relevant to the discharge of the requirements of the Habitats Directive. In such cases, all competent authorities had to have regard to the Habitats Directive so as to ensure that compliance with the Directive was achieved.
In the present context, the defendant was effectively the sole (and certainly the principal) public body responsible for determining whether abstraction licences should be granted, varied or revoked. If it did not secure the requirements of article 6(2) in respect of those decisions, no other public body was capable of filling the gap.
Accordingly, the defendant had to take the requirements of the Habitats Directive into account and, insofar as it was (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it had to discharge those requirements. The scope for departure that was ordinarily inherent in the words “have regard to” was considerably narrowed.
It was clear from the contemporaneous evidence that the defendant had regarded itself as bound by the Habitats Directive and had sought to act in compliance with its requirements.
(2) The Habitats Directive had to be interpreted in accordance with the precautionary principle which was inherent in article 6(2). Where a licence had been granted in a manner compatible with article 6(3), article 6(2) was superfluous. But if the plan or project subsequently proved likely to give rise to deterioration of habitats or significant disturbance of species, article 6(2) provided a mechanism for ensuring the conservation of natural habitats and fauna and flora. Article 6(3) ensured, prospectively, that a relevant plan or project was authorised only if it would not adversely affect the integrity of the site, whereas article 6(2) imposed a general protection obligation to avoid deterioration and significant disturbance.
(3) The question whether article 6(2) was enforceable by a UK court (irrespective of regulation 9(3) of the Habitats Regulations) turned on the application of section 4(2)(b) of the European Union (Withdrawal) Act 2018, namely whether the obligations under article 6(2) were of a kind recognised by the ECJ, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020.
The test in section 4(2)(b) was satisfied once a case was identified that recognised article 6(2) as being enforceable in domestic proceedings. It was not relevant to the section 4(2) test to enquire whether the case was correctly decided or was decided per incuriam. By reason of section 4 of the 2018 Act, article 6(2) continued to be recognised and available in domestic law and was to be enforced accordingly.
In the present case, there was the clear potential for water abstraction to cause damage to wetland ecosystems. It was thus necessary to address the question whether abstraction of water in the area of a protected site was damaging to that site. Having regard to the precautionary principle, that was sufficient to trigger the article 6(2) duty. A court would be slow to question the defendant’s expert assessment as to the steps that should be taken. However, to take no steps would be a breach of article 6(2).
(4) The defendant’s recognition of the risks of such damage, meant that some form of review was required. Absent such a review there was no secure basis for identifying a need for adjustments to licences. The test that was applied before an adjustment was made (ie, that the licence was shown to be “seriously damaging”) was contrary to the precautionary principle. A much lower threshold for intervention was required. The defendant had to act unless it was satisfied that there was no risk of significant damage.
So far, the defendant had not undertaken any sufficient analysis of the steps needed to address the impact of abstraction in accordance with permanent licences. The claimants had therefore demonstrated a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.
Having committed itself to discharging the article 6(2) obligation, it was irrational for the defendant not to expand its Restoring Sustainable Abstraction Programme without having any alternative mechanism in place that could ensure compliance with article 6(2). It followed that, even if article 6(2) was not enforceable by the High Court, the defendant’s decision was flawed on common law grounds. On that basis, the defendant had acted irrationally.
Richard Wald QC (instructed by Freeths LLP) appeared for the claimants; Matthew Dale-Harris (instructed by the Environment Agency) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Harris and another) v Environment Agency
