Water, water, everywhere…
This post considers a case, Harris & Anor v The Environment Agency [2022], and its two judgments, which have helped to shape the understanding of the application of EU law in the domestic Courts post Brexit (during the substantive hearing,), and what the Court is willing to impose on a Defendant in terms of a ‘plan of action’ (during a relief hearing). It concerns water abstraction, in this case, groundwater from the Norfolk Broads (The Broads SAC), for use in public supply. Licences are required to undertake this work, and these licences are granted by the Environment Agency (‘EA’). As such, they can also be varied or revoked by the EA.
Mr and Mrs Harris (‘Claimants’) who live in the Norfolk Broads, brought a judicial review against the EA concerning water abstraction from the Norfolk Broads. The Claimants said the water abstraction was causing irremediable damage to the environment, including legally protected areas. Following the EA’s decision not to renew two of their abstraction licences, where the Claimants’ intervention was instrumental in this decision, the Claimants sought for the EA to review more broadly the impact of water abstraction, to decide which licences should be withdrawn or altered. The EA refused to expand the scope of an investigation into the effect of 240 water abstraction licences across the SAC, resulting in the EA investigating just three Sites of Special Scientific Interest (‘SSSI’).
The crux of the Claimants’ case related to the EA’s obligations under the EU Habitats Directive (92/43/EEC) (‘Habitats Directive’). The Claimants’ grounds were as follows:
- The EA was in breach of an obligation under article 6(2) of the Habitats Directive to avoid deterioration of protected habitats and disturbance of protected species (by limiting its investigation to just three sites).
- In any event, article 6(2) is incorporated into domestic law via regulation 9(3) the Conservation of Habitats and Species Regulations 2017 (‘Habitats Regulations’), which requires the EA to “have regard” to the Habitats Directive.
- Irrespective of ground two that, article 6(2) of the Habitats Directive is enforceable by the domestic courts.
- The EA was irrational in their decision not to conduct a more expansive investigation.
What did the EA say?
The EA did not dispute that they must have regard to article 6(2), but that the Habitats Regulations ask only that, and no more, i.e. no obligation is imposed on them to comply with the Habitats Directive, and had that been the intention of article 9(3) of the Habitats Regulation, it would say so. The EA submitted that beyond the obligation to “have regard”, article 6(2) did not have any direct effect in domestic law. The EA submitted that the decision to only investigate the three SSSI followed them having that regard to the article. In the EA’s view, then, they were not irrational in their decision to investigate just three SSSI sites.
Substantive Judgment
The claim was successful.
Owed to the European Union (Withdrawal) Act 2018, the Habitats Regulations continue to have effect in domestic law, as they are EU-derived domestic law, and as such must be interpreted in accordance with retained EU case law and principles of law. It was therefore held that the EA, by reason of regulation 9(3) of the Habitats Regulations, must have regard to the requirements of article 6(2) of the Habitats Directive, and be in a position to justify any departures from those requirements. It was therefore held that article 6(2) continues to be enforceable in domestic law, and that the obligation must continue to be interpreted in accordance with the precautionary principle (see judgment para 112).
The judgment goes on to say, at paras 113-114 that it therefore follows that the EA must take appropriate steps to ensure that there is no possibility of the deterioration of protected habitats or significant disturbance of protected species as a result of licensed water abstraction, in the SAC. Though the EA discharged this obligation in relation to the three SSSI sites, it had not done so in respect of the others within the SAC. Due to the flawed nature of the review of the abstraction licences, the EA was in breach of article 6(2) of the Habitats Directive, and regulation 9(3) of the Habitats Regulations.
It then follows that it was not rational for the EA to limit the investigation, without ensuring compliance with article 6(2) across the SAC.
Relief Judgment
A separate hearing was held in relation to relief in October 2022.
The Claimants sought an order from the Court which in essence set out a plan for the EA to follow detailing inter alia, measures they intend to take, together with the scientific and technical methodologies underpinning those measures, including as to the completion of its Restoring Sustainable Abstraction licensing review process. The Claimants sought for deadlines for commencement and completion to be imposed, and for the EA to file with the Court, publish and provide to the Claimants and Interested Party (Natural England) confirmation by each deadline. The Claimants said this was what was needed for the EA to urgently take effective measures. The Claimant relied upon the order made in R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2018] EWHC 315 (Admin) to justify the order sought, as they said that the scheme of the order was not dissimilar. The Claimants also sought for liberty to apply to the Court should the EA not comply with such an order.
The EA resisted the order and said that it went beyond the Court’s functions, by applying a programme of supervision and control of the EA’s future compliance with statutory duties, and that it differs from ClientEarth as the statutory duties in that matter were more prescriptive as to what was required (para 4). They said that the judgment itself was sufficient as a remedy.
It was held that the Claimants were entitled to an effective remedy, and that identifying flaws in the EA’s approach to the Habitats Directive was not in itself an effective remedy, without a mandatory order in this instance. It was therefore ordered that the EA must within 8 weeks, formulate, and disclose to the Claimants, a plan as to how it will comply with the Habitats Directive. It required scientific and technical basis for the assessment of measurements necessary to comply, but did not go as far as the notification requirements sought by the Claimant at every stage (para 26). It is none the less an important judgment in terms of how the Court is willing to intervene by ordering a Defendant (like it did in ClientEarth) to actively produce a plan within a timetable.
The Claimants’ request for liberty to apply to the Court should the EA not comply with the order was rejected, as CPR Part 81 provides for this in any event (Applications and Proceedings in Relation to Contempt of Court).
