Legal article: landmark case against the Environment Agency: Court confirms enforceable European habitats laws post-Brexit

We have won a key Habitats Directive case in the High Court: Harris v Environment Agency. Read our press release in full here >

Freeths' clients, long-standing campaigners and landowners Mr and Mrs Harris, argued that the Environment Agency failed to do enough to protect internationally rare wetland species and habitats of the Broads Special Area of Conservation (SAC) (in Norfolk and Suffolk) from the impacts of water abstraction activities licenced by the Agency for agricultural and other purposes. The Court agreed.

The Court found that the Environment Agency acted in breach of European law (Article 6(2) of the EU Habitats Directive) and of domestic law (regulation 9(3) of the Conservation of Habitats and Species Regulations 2017) and also irrationally. This is because the Agency's work to stop environmental damage from water abstraction was limited only to very small parts of the Broads SAC, when it was aware that much wider areas of the SAC were potentially equally impacted.

Please contact Freeths' Environmental Law Partner, Penny Simpson, for further information about the details and implications of this case.

The key points arising from the judgment are:

1: Ongoing enforceability in the UK of Article 6(2)-(3) Habitats Directive despite Brexit:

The judgment has confirmed that, under the terms of the UK's domestic EU-exit legislation, Article 6(2) has continuing “direct effect” meaning that it continues to stand independently of the Conservation of Habitats and Species Regulations 2017 and is directly enforceable by the domestic courts against public bodies: “By reason of section 4 of the 2018 Act [s4(2)(b) of the European Union Withdrawal Act 2018], Article 6(2) continues to be recognised and available in domestic law and is to be enforced accordingly” (para 94 of the judgment); and “the Environment Agency's obligation under article 6(2) continues to be enforceable in domestic law: section 4 of the 2018 Act” (para 112 of the judgment).

This is very important. It means that, under the terms of the UK's EU-exit legislation, even if changes are made by Parliament to the Conservation of Habitats and Species Regulations 2017, Article 6(2) is still enforceable against public bodies. There is also no question that the same applies to the Habitats Regulations Assessment provisions of Art 6(3) of the Habitats Directive (even though this judgment does not expressly say so). Indeed the same would apply to any European Directive rule at all, if it is of a kind which a court has found (pre-Brexit) to be enforceable by the domestic courts (paragraphs 89-94 of the judgment).

2: Clarity on the meaning Article 6(2) Habitats Directive:

“This means that where it becomes apparent that there is a risk to a protected habitat or species [within a SAC] as a result of the licensed abstraction of water, Article 6(2) imposes an obligation to review the applicable licenses... The review must be sufficiently robust to guarantee that the abstraction of water will not cause significant damage to ecosystems that are protected under the Habitats Directive...” (paragraph 50 of the judgment).

Further the caselaw is “clear that it is not sufficient to wait until damage to a site occurs before taking remedial action... If there is reason to believe that there is a risk of damage then it is necessary to take remedial steps....” (paragraph 98 of the judgment); and “the steps taken must.... be sufficiently robust to guarantee that abstraction of water does not cause damage to ecosystems that are protected under the Habitats Directive” (paragraph 100 of the judgment, at the end); and “the Environment Agency must act unless it is satisfied that there is no risk of significant damage” (para 103 of the judgment).

3: Clarity on the meaning of the legal duty on all competent authorities (i.e. public bodies) under Regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 to “have regard to the requirements of the Habitats and Birds Directives” in exercising their functions:

Although the language “have regard” normally merely means “to consider” and “to depart from [it] if there is good reason to do so”, in this particular case the duty is stricter because it is to have regard to “the requirements” of the Directives and “requirements” are mandatory. Where the Environment Agency (and by implication any public body) is solely charged under legislation with regulating / licensing an activity (in this case water abstraction) which threatens a SAC (so that if that public body does not act to protect the SAC then no other body can do so instead) then “have regard” to the Directives' requirements means “must discharge” those requirements (paras 80-87 of the judgment).

4: A lack of financial resources within a public body is not a valid justification for failure to comply with its Article 6(2) / regulation 9(3) duty:

“Resources may be relevant to the decision as to how to discharge the Article 6(2)/regulation 9(3) obligations, but they are not relevant to the question of whether to discharge those obligations” (para 104 of the judgment, at the end).

5: Clarity on the position of the Conservation of Habitats and Species Regulations 2017 post-Brexit:

Confirmation that (i) the 2017 Regulations continue to have effect in domestic law (para 56 of the judgment); (ii) the 2017 Regulations must be interpreted in accordance with retained (i.e. pre-Brexit) EU caselaw and retained (i.e. pre-Brexit) principles of EU law (para 51 of the judgment); and (iii) the EU precautionary principle is a retained general principle of EU law (para 59 of the judgment).

The Court judgment is dated 6 September 2022 and can be read in full here >

Contact information

For media enquiries please contact: Lucy Hilton | PR Officer | lucy.hilton@freeths.co.uk | 0797 425 7060

For client enquiries please contact: Penny Simpson | Environmental Law Partner | penny.simpson@freeths.co.uk