Landmark environmental case against the Environment Agency: Court confirms enforceable European laws post-Brexit

Law firm Freeths LLP has today won a landmark environmental case in Harris vs Environment Agency. The High Court has ruled that key European nature conservation laws remain enforceable against the Environment Agency (and by implication other public bodies), despite the UK having left the European Union.

The Court agreed with Freeths' clients, husband and wife campaigners Mr and Mrs Harris, that the Environment Agency failed to do enough to protect rare wetland species and habitats of international importance in the Norfolk Broads from the impacts of water abstraction licenced by the Environment Agency for agricultural and other purposes.

The Court found the Environment Agency acted irrationally, in breach of European law (the Habitats Directive) and in breach of domestic law. This was because the Environment Agency's work to address environmental damage from water abstraction was limited to only very small parts of the Broads' protected conservation areas, when much wider areas were potentially equally impacted.

In deciding the case, the Court recognised and applied a key, but little-known, legal provision in the UK's EU-exit legislation. This says that, even though the UK has left the EU, rules in European Directives remain enforceable against UK public authorities if those rules had been recognised by a court as being enforceable prior to Brexit. In this case this legal provision applied to the enforceability of rules under the Habitats Directive which protects designated conservation areas.

The Court also ruled that a lack of Environment Agency funding was not a valid justification for failing to comply with its legal duties in this case, even though the availability of funding could be relevant to how those duties may be met.

Penny Simpson, Environmental Law Partner at Freeths LLP, who brought the case for Mr and Mrs Harris, said:

“This is a very important Court judgment for both East Anglia and the UK.

For East Anglia there must now be significant and urgent work by the Environment Agency to prevent damage from water abstraction to the large Broads conservation area.

For England and Wales, we now know that public authorities must take appropriate steps to prevent harm to sites protected under the Habitats Directive where those public authorities are charged with the legal powers to do so. In this case the Environment Agency regulates water abstraction activities and so it was their duty to protect the Broads' conservation areas from damage arising from water abstraction.

For the UK as a whole, this case has wide-reaching implications. It recognises that, even though the UK has left the EU, the UK has not escaped the direct influence of European Directives if, prior to Brexit, those rules had been found by a court to be directly enforceable against public authorities. Where this applies, individuals can continue to rely upon those rules against public authorities. This would be the case even if Parliament were to amend or remove specific existing domestic legislation which implements a European Directive.

European Directives regulate wide ranging aspects of our lives such as consumer protection, energy, health and safety, finance, data protection as well as environmental protection, so this is an important ruling with wide-ranging implications. We can expect to see other cases like this come forward in other areas”.

Notes for editors:

The EU Habitats Directive (92/43/EEC) provides for areas containing rare and threatened species and habitats to be designated as “Special Areas of Conservation (SAC)”. The Broads SAC was designated on 1 April 2005 and covers 5885.347ha (approximately 22.5 square miles) of the Broads in Norfolk and Suffolk. Its protected features include the fenlands, lakes and bogs of the Broads and rare plant species such as the Fen Orchid.

Mr and Mrs Harris own land in the Broads SAC and have been campaigning since 2009 to protect the SAC's internationally important flora and fauna from damage caused by water abstraction activities licensed by the Environment Agency.

Article 6(2) of the Habitats Directive requires that “Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species .... for which the areas have been designated ....”.Due to Article 6(2), the Environment Agency in 2018-2021 undertook a review of the impacts of water abstraction licences on three small areas of the Broads SAC only, but they did not cast the net further even though they themselves recognised that wider areas of the Broads SAC may also be threatened by water abstraction activities.

Mr and Mrs Harris brought a judicial review claim against the Environment Agency in 2021. They claimed that, by restricting its review of the environmental impacts of abstraction licences only to three small areas of the SAC, the Environment Agency had acted (i) in breach of Article 6(2) which (the claimants argued) is directly enforceable under section 4(2) of the European Union (Withdrawal) Act 2018; (ii) in breach of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (this is the domestic legislation implementing Article 6(2)); and (iii) irrationally.

The Court agreed with Mr and Mrs Harris on all three grounds.

The EA is not intending to appeal the decision of Mr Justice Johnson.

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

Our supporting legal article can be read in full here >

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