Claimants win legal challenge against Environment Agency over water withdrawal in Norfolk Broads

The High Court has ruled in a case involving water abstraction that certain EU nature conservation laws remain binding on the Environment Agency (EA) despite the UK leaving the Union European.


Plaintiffs Timothy and Angelika Harris argued that the taking of water from the Norfolk Broads was causing irreparable damage to the environment, including legally protected ecosystems.

They argued that the EA should look more broadly at the impact of the water withdrawal to decide whether licenses should also be withdrawn or amended and challenged its refusal to expand the scope of an investigation to 240 licenses.

Mr and Mrs Harris argued that the environmental assessment breached an obligation under Article 6(2) of the EU Habitats Directive (92/43/EEC) to avoid the deterioration of protected habitats and disturbance of protected species.

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They also argued that the obligation in Article 6(2) of the Habitats Directive had effect in domestic law because of Regulation 9(3) of the Habitats and Species Conservation Regulations 2017 , which requires it to “take into account” the Habitats Directive. Directive and that Article 6(2) is enforceable by national courts.

Another reason was that EA’s decision not to investigate further the impact of authorized water withdrawals was irrational.

EA told the court it agreed to take Article 6(2) of the Habitats Directive into account, but said it had done so.

After taking this into account, it had reasonably decided to limit its investigation to the impact of the 240 licenses. She disputed that Article 6(2) had any direct effect in domestic law beyond the obligation to “take it into account”.

In Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) Judge Johnson said in his judgment that EA’s decision not to extend the investigation “was not necessarily inconsistent with Article 6(2)”, but added that the issue of the EA was that its work program “will not discharge the obligation of Article 6(2)”.

The judge explained: “Having committed itself to fulfilling this obligation, it was irrational for the Environment Agency not to extend the sustainable extraction restoration program without having put in place an alternative mechanism. likely to ensure compliance with Article 6(2).

“It follows that even if…unenforceable by the High Court, the Environment Agency’s decision is flawed on common law grounds.” He said he would give direction on granting the relief.

Law firm Freeths, which represented Mr and Mrs Harris, said: ‘In deciding the case, the court recognized and applied a key, but little known, statutory provision of UK exit legislation. EU.

“It says that, even if the UK has left the EU, the rules of the EU directives remain enforceable against UK public authorities if those rules had been found by a court to be enforceable before Brexit.”

He noted that the court also ruled that a lack of EA funding was not a valid justification for failing to comply with its legal obligations, even though funding may be relevant to how those obligations may be fulfilled.

Penny Simpson, environmental law partner at Freeths, said: ‘For the UK as a whole, this case has far-reaching implications.

“He recognizes that, even if the UK has left the EU, the UK has not escaped the direct influence of EU directives if, before Brexit, these rules had been found by a court to be directly opposed to public authorities.

“Where applicable, individuals can continue to invoke these rules against public authorities. This would be the case even if Parliament were to amend or remove specific existing national legislation which implements an EU directive.

Ms Simpson noted that EU directives covered many other topics, including consumer protection, energy, health and safety, finance and data protection, and “we can expect to see more cases like this arise in other areas”.

Marc Smulian