Mr Timothy Charles Harris v The Environment Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 06 September 2022 |
| Neutral Citation | [2022] EWHC 2264 (Admin) |
| Docket Number | Case No: CO/3345/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2264 (Admin)
Mr Justice Johnson
Case No: CO/3345/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Wald QC (instructed by Freeths LLP) for the Claimants
Matthew Dale-Harris (instructed by Environment Agency) for the Defendant
Hearing dates: 7–8 July 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 September 2022 by circulation to the parties and release to The National Archives.
The claimants, Angelika and Timothy Harris, live in the Norfolk Broads. They are concerned that water abstraction is causing irremediable damage to the environment, including ecosystems that are legally protected. Their intervention was instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. They challenge, by judicial review, the Environment Agency'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 (“the three SSSIs”).
The claimants' case is that:
(1) the Environment Agency is in breach of an obligation under article 6(2) of the EU Habitats Directive (92/43/EEC) (“the Habitats Directive”) to avoid the deterioration of protected habitats and disturbance of protected species.
(2) The obligation under article 6(2) of the Habitats Directive has effect in domestic law by reason of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) which requires the Environment Agency to “have regard” to the Habitats Directive.
(3) Irrespective of the effect of regulation 9(3) of the Habitats Regulations, article 6(2) of the Habitats Directive is enforceable by the domestic courts.
(4) The Environment Agency's decision not to conduct a more expansive investigation into the impact of licenced water abstraction is irrational.
The Environment Agency accepts that it must have regard to article 6(2) of the Habitats Directive. It maintains that it has done so and that it has, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputes that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. In any event, it maintains that it is acting compatibly with the requirements of article 6(2).
Permission to claim judicial review was granted by Chamberlain J. The parties have cooperated closely in identifying areas of agreement and dispute and focussing argument on the latter. They agree that the outcome of the claim depends on the resolution of the following issues:
(1) The ambit of the obligation, under regulation 9(3) of 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 (paragraphs 73–88 below).
(2) Whether article 6(2) of the Habitats Directive imposes an obligation of a kind recognised by the Court of Justice of the European Union (“CJEU”) or any court or tribunal in the United Kingdom in a case decided before 2021 (paragraphs 89–94 below).
(3) Whether the Environment Agency has breached article 6(2) of the Habitats Directive by limiting its investigation of water abstraction to the three SSSIs (paragraphs 95–106 below).
(4) Whether the Environment Agency acted irrationally by limiting its investigation of water abstraction to the three SSSIs (paragraphs 107–109 below).
There is also a dispute between the parties as to the relevance (when determining issues (3) and (4)) of (a) funding constraints on the Environment Agency and (b) the possibility that it might undertake further work in respect of the impact of water abstraction, outside the ambit of the programme that examined the three SSSIs.
The factual background
The parties
The Environment Agency was established by section 1 of the Environment Act 1995. By section 6(1)(b) of the 1995 Act, its duties include the promotion of the conservation of flora and fauna which are dependent on an aquatic environment. It is responsible for the grant (and variation and revocation) of licences for the abstraction of water.
The claimants own and reside at Catfield Hall, Norfolk. That is within the area of Catfield Fen which is, itself, within the area of the 240 licences that were considered in the Environment Agency's investigation. The claimants also own land in Hickling and Potter Heigham which is also within the area covered by the 240 licences. They have been concerned for many years about the condition of fenland in the area where they live and own land. They are particularly concerned about the impact of the abstraction of groundwater for agricultural and other purposes. They have been raising those concerns with the Environment Agency for well over a decade. They successfully supported the Environment Agency's decision to vary two licences when that decision was challenged on appeal.
Impact of water abstraction on ecosystems
Groundwater is water that is present in the ground. Many ecosystems are dependent on a supply of groundwater. Groundwater may be abstracted (in the Norfolk Broads, from either the chalk, the crag, or the Sandringham sands) for use by the public water supply, industry, and agriculture. A licence is required to extract groundwater. Such licences may either be permanent (with no requirement to renew) or time limited (with the possibility of periodic renewal). The Environment Agency has power to revoke abstraction licences: sections 52 and 53 of the Water Resources Act 1991 (see paragraph 41 below).
The abstraction of groundwater has an impact on the supply of water to wetland habitats. The precise mechanism is complex. There are many unknowns, particularly in respect of the pathways by which water travels between the aquifer (underground permeable rock, from which abstraction generally takes place) and the shallow water table (from which it is accessed by flora). Changes to groundwater flows can also influence the chemistry within the ground and this can impact on the surface ecology. This all means that it is difficult to predict the locations where water abstraction from a particular area might have an impact, or to predict what the impact might be. It is known that there can be an impact over a considerable distance: abstraction from one location may affect an ecosystem several kilometres away. It is also known that it can take many years for the impact of abstraction to become fully apparent. Changes to ecosystems can, initially, be too subtle to be detected by routine monitoring (for example, loss of specialist invertebrates, or plants that only naturally occur in low densities). Once changes to an ecosystem are apparent, it may be too late to put matters right; by that stage, irremediable damage may have occurred.
For this reason, the interested party (“Natural England”) (which has statutory responsibility for providing advice to the Environment Agency and others), advised the Environment Agency in October 2020 that it was necessary to consider water supply in the Broads and to take any necessary action to restore ground and surface water levels. For the same reason, the Environment Agency itself recognises an obligation to apply a “precautionary approach to dealing with adverse effects” such that it must take appropriate and proportionate action to ensure that licenced water abstraction does not lead to adverse effects.
The Norfolk Broadland river valleys
The Norfolk Broads is, in terms of rainfall, one of the driest parts of the country. Long-term average annual rainfall is between 600mm and 730mm. The low rainfall is exacerbated by periods of drought. The Broads also lie within an area where a great deal of irrigated fruit and vegetable production takes place. This is reliant on water abstraction. In the Bure and Thurne Reporting Area alone, more than 60 million litres of ground water and surface water are abstracted each day. So, there is a relatively small amount of rainfall, but a considerable amount of water is taken from the ground.
The exceptional biodiversity in the Norfolk Broads has resulted in it having the highest level of national and international nature conservation protection. There are 28 individual SSSIs which together make up The Broads Special Area of Conservation (“SAC”). There are 25 SSSIs that make up the Broadlands Special Protection Area for birds (“SPA”).
The SAC and SPA are each designated as a “European site” protected under article 6 of the Habitats Directive, as is the Broadland Ramsar site which is designated under the Ramsar Convention. The area supports water and wetland habitats which host the most diverse areas of fen vegetation in Western Europe. They support many rare animal and plant species. The features of the SAC which give rise to its status include types of calcareous fens and alluvial forests which are priority natural species and habitats respectively (listed in Annex 1 and Annex 2 of the Habitats Directive). The SPA's qualifying features include the great bittern, the ruff, and the Eurasian marsh harrier. The claimants' case applies to the entirety of all three European sites, but it is sufficient to focus on the SAC in order to resolve the claim.
The 28 SSSIs within the SAC include the Ant Broads and Marshes SSSI, Alderfen...
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