Richard Wald QC acts for successful claimants in significant and wide-ranging challenge to the Environment Agency's failure to prevent ecological harm in the Norfolk Broads

The High Court has handed down judgment in a case with wide-ranging ramifications for the application in the UK of the EU Habitats Directive (92/43/EEC) ("the Habitats Directive") and of European law more generally, post-Brexit.

In  R(Harris) v Environment Agency & Natural England [2022] EWHC 2264 (Admin) Johnson J held that Articles 6(2) and 6(3) of the Habitats Directive remain enforceable as against relevant public authorities despite the UK's departure from the EU and more fundamentally, that these provisions continue to be applicable in domestic law.

The Claimants, Mr and Mrs Harris, brought a claim against the Environment Agency ("EA") alleging a its failure to sufficiently safeguard a number of protected species within the Norfolk Broads from the adverse effects of licensed water abstraction for farming and other purposes by adopting an unduly narrow scope of investigation (i.e. limited to only three Sites of Special ("the Three SSSIs") within its Restoring Sustainable Abstraction Programme ("RSA Programme").

The High Court considered [4]:

• The ambit of the obligation, under regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations"), to "have regard" to the requirements of the Habitats Directive, including whether that mandates compliance with article 6(2) of the Habitats Directive [73-88].
• Whether article 6(2) of the Habitats Directive imposes an obligation of a kind recognized by the Court of Justice of the European Union or any court or tribunal in the UK in a case decided before 2021 [89-94].
• Whether the EA had breached article 6(2) of the Habitats Directive by limiting its investigation of water abstraction to the three SSSIs [95-106].
• Whether the EA acted irrationally by limiting its investigation of water abstraction to the three SSSIs (paragraphs 107-109 below).

Johnson J held in favour of the Claimants on all four issues. He concluded that the limited scope of the measures adopted by the EA were both in breach of Arts 6(2) and 6(3) of the Habitats Directive and irrational. Moreover he held that limitations of funding did not constitute a justification for a failure to meet the requirements of the legislation.

Perhaps more fundamentally, in so concluding, the High Court applied section 4(2)(b) of the European Union (Withdrawal) Act 2018 ("the EU (Withdrawal) Act 2018") and held that these provisions of European Law are directly enforcement in the UK because they are of a kind recognized by a UK court before 31 January 2020.  As such, "…by reason of section 4 of the 2018 Act, article 6(2) continues to be recognized and available in domestic law and is to be enforced accordingly." [94]

Consequently the EA must now return to its RSA Programme and expand the scope of its work to a much wider area within the Norfolk Broads. More widely, all relevant public authorities in England and Wales must take appropriate steps to prevent harm to protected species under the Habitats Directive. And within the UK as a whole, despite Brexit, the provisions of the Habitats Directive are enforcement by the domestic courts, even in the event that the Habitats Regulations were amended. Provided they were recognized by a UK court before 31 January 2020, then the provisions of other European Directives will likewise continue to be enforceable in the UK courts by operation of section 4 of the EU(Withdrawal) Act 2018.

Richard Wald QC acted for the Claimants and was instructed by Penny Simpson, Partner at Freeths LLP. Stephen Tromans QC had advised the Claimants before this claim was issued.

A copy of the judgment can be viewed here.