Timothy Charles Harris and Angelika Harris v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 10 March 2022 |
| Neutral Citation | [2022] EWHC 508 (Admin) |
| Docket Number | Case No: CO/3345/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 508 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/3345/2021
and
Richard Wald QC (instructed by Freeths LLP) for the Claimant
Matthew Dale-Harris (instructed by Environment Agency) for the Defendant
Hearing dates: 24 February 2022
Approved Judgment
Introduction
The claimants, Timothy and Angelika Harris, renew their application for permission to apply for judicial review of decisions of the Environment Agency (“the EA”) reflected in a report dated 14 June 2021 entitled Ant Broads and Marshes Resorting Sustainable Abstraction: Investigation and Options Appraisal Closure Report (“the RSA report”). It addresses the effects of water abstraction in relation to three sites of special scientific interest (“SSSIs”) in the Ant Valley in Norfolk.
Background
The key background to the RSA report is set out in the witness statement of Ian Pearson on behalf of the EA. The Restoring Sustainable Abstraction programme (“the RSA programme”) is a programme of work undertaken by the EA across England to identify, investigate, and resolve environmental risks or problems caused by unsustainable licensed water abstraction.
Between 1999–2012, the EA identified approximately 500 sites, predominantly SSSIs, which were potentially at risk from water abstraction. They also included other sites where EA staff, Natural England or other organisations had identified abstraction as a potential environmental risk. The RSA programme was closed to new sites in 2012. If new evidence shows that another site needs investigation, the EA can still address it, but not as part of the RSA programme.
The Ant Valley SSSIs were first investigated under the RSA programme as part of the Review of Consents initiative between 2002 and 2010, which concluded that the risk associated with licensed abstraction was unacceptable at four SSSIs in the Norfolk Broads, not including the Ant Valley sites. This resulted in a programme to manage the risks identified. The programme ran between 2009 and 2014.
A new investigation under the RSA was begun in 2010 in relation to the Ant Broads and Marshes SSSI, partly as a result of information provided by the claimants. In 2016, some results from this investigation were relied upon in rejecting appeals from the EA's decision not to renew irrigation licences. In 2018, the EA conducted an external consultation, during which consultees suggested extending the RSA investigation to cover other SSSIs. The EA initially rejected the suggestion, because the RSA programme was closed to the addition of new sites, but then decided that two further sites immediately adjacent to the Ant Broads and Marshes SSSI – Broad Fen, Dilham and Alderfen Broad – could be added without significant additional expense. The outputs from this extended investigation were also considered by the EA to be potentially relevant to some licence renewal applications which were pending.
It was decided not to include Smallburgh Fen SSSI because ecological concerns had previously been identified there and licence changes recently introduced. The EA decided that the inclusion of this additional site was not justified.
The claimants' first ground of challenge is to the scope of the RSA Report, which on its face makes clear that it is limited to considering 240 licensed abstractions (comprising both surface and groundwater licences) and their effect on three SSSIs: Ant Broads and Marshes, Broad Fen Dilham and Alderfen. All three are located within what are called the “Broads European sites”, which are special areas of conservation for the purposes of Council Directive 92/43/EEC (“the Habitats Directive”). Importantly, however, the three SSSIs make up only a small part of the Broads European sites.
Ground 1
The claimants' submissions
The claimants say that the EA is aware of the risk of damage from abstraction to sites other than the three SSSIs identified. This awareness comes in part from material brought to its attention by the claimants and from its own investigations undertaken as part of the licence appeals process in 2016. The claimants also point to other documents which show the EA's knowledge of risks to other areas within the Broads European sites.
The essence of the claimants' ground 1 is this. The Conversation of Habitats and Species Regulations 2017 (SI 2017/1012, “the Habitats Regulations”) were adopted to implement the UK's obligations under the Habitats Directive. Article 6(2) of the Habitats Directive requires Member States to “take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of the Directive”.
As respects non-marine areas, reg. 9(1) of the Habitats Regulations applies to “the appropriate authority” and to “nature conservation bodies” and provides that they “must exercise their functions which are relevant to nature conservation… so as to secure compliance with the requirements of the Directives”. The Directives referred to are the Habitats Directive and Directive 2009/147/EC (“the new Wild Bird Directive”). It is common ground that reg. 9(1) does not apply to the EA, which is neither an “appropriate authority” nor a “nature conservation body”. However, the EA is a “competent authority” to which the provisions of reg. 9(3) apply. That provides:
“Without prejudice to the preceding provisions, a competent authority, in exercising any of its functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.”
The claimants submit that, taken together, Article 6(2) of the Habitats Directive and reg. 9(3) of the Habitats Regulations require the EA to take appropriate steps to avoid the deterioration of the natural habitats and the habitats of species within European sites, as well as disturbance of the species for which the areas have been designated in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive.
This, the claimants say, imposes a proactive or anticipatory duty to avoid or prevent the relevant deterioration or significant disturbance, in line with the EU law “prevention principle”. They cannot simply wait until the deterioration has happened before taking action. Moreover, it is not sufficient to rely on the previous Review of Consents process, which concluded in 2010, because the duty imposed by Article 6(2) is an ongoing one and, in any event, the EA now has better information which it accepts calls the results of the previous process into question. Finally, the claimants say that what the EA must look for is not the deterioration or significant disturbance which has happened, but the risk of this occurring in the future.
The claimants submit that, having elected to review the effect of 240 abstraction sites, it was incumbent on the EA to ensure that none of them has any adverse effect on the integrity of the Broads European sites, rather than to limit its inquiry to the three SSSIs identified. In this regard, the claimants rely on Article 6(3) of the Habitats Directive, which has been interpreted as requiring that any assessment “may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned”: see Case 399/14 Grüne Liga ECLI:EU:C:2016:10, at [50].
The claimants add that the RSA Report itself acknowledges the existence of other sites, beyond the three SSSIs identified, where the EA's own thresholds for significant impact are met.
The EA's response
The EA accepts that there may indeed be evidence showing a...
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