Environmental Law Update | November 2026

High Court finds Natural England in breach of Habitats Regulations duties

In R (Harris) v Natural England, the High Court found that Natural England (NE) has breached its duty under Regulation 9(1) of the Conservation of Habitats and Species Regulations 2017 and Article 6(2) of the Habitats Directive 92/43/EEC by failing to take appropriate steps to protect Catfield Fen, part of a Special Area of Conservation (SAC), from agricultural pollution. While the Court recognised that investigation and assessment may constitute appropriate steps, on the facts of the case, the evidence had reached a point at which further investigation was insufficient, and NE was required to take active steps to protect the designated site.

Richard Broadbent (Director), Annabel Walker (Senior Associate) and Jamie Kunz (Legal Assistant) consider the judgment and its wider implications.

Natural England refused permission to appeal gamebird licensing judgment

Following the High Court's judgment in R (British Association for Shooting and Conservation Ltd) v Natural England, the Court has refused NE permission to appeal and declined to stay its order. The underlying judgment concerned conditions imposed by NE relating to the keeping and release of gamebirds, with the Court finding that the relevant “keeping” conditions fell outside the statutory licensing power. In the consequentials judgment, Ritchie J concluded that NE's proposed grounds of appeal had no realistic prospect of success and was critical of NE's continued imposition of the very keeping conditions he had just ruled unlawful, describing NE's and the Secretary of State's public and in-hearing threats to withdraw licences as carrying "an implication of bullying".

European Commission publishes Habitats Directive opinions on infrastructure projects

The European Commission has published two recent opinions under Article 6(4) of the Habitats Directive 92/43/EEC concerning infrastructure projects expected to adversely affect Natura 2000 sites in Germany and Sweden. In both cases, the Commission accepted that the projects could be justified by imperative reasons of overriding public interest, subject to mitigation, compensation and monitoring requirements. The Opinion related to the German case is particularly notable for measures addressing nitrogen deposition from a proposed motorway extension, including a reduced speed limit, together with habitat compensation. These opinions are not binding in the UK, but it is interesting to understand the reasoning given they relate to the interpretation of the Habitats Directive.

Retrospective development falls outside statutory Biodiversity Net Gain framework

The Planning Inspectorate has allowed an appeal concerning a condition requiring 10% Biodiversity Net Gain (BNG) in connection with a largely retrospective development. The Inspector confirmed that the statutory BNG regime does not apply to retrospective planning permissions under section 73A of the Town and Country Planning Act 1990 (TCPA). The statutory biodiversity gain condition under Schedule 7A of the TCPA is a pre-commencement condition and could not therefore operate retrospectively in respect of development that had already taken place.

Although the Council referred to the National Planning Policy Framework's (NPPF) support for biodiversity enhancement, the Inspector distinguished this from the statutory BNG regime. The reason given for the condition relied on Schedule 7A of the TCPA rather than any development plan policy, and the Inspector concluded that the permission fell outside the statutory BNG framework and that the condition was unnecessary.

OEP seeks evidence on barriers to nature recovery

The Office for Environmental Protection (OEP) has launched a call for evidence seeking examples of regulatory and practical barriers that are preventing, delaying or discouraging nature recovery projects in England. It focuses on barriers affecting restoration and conservation on land, in freshwater and in coastal areas. Examples may include requirements arising from legislation, consenting, policy and guidance, as well as how those requirements are interpreted and applied in practice. The OEP is interested in both genuine and perceived barriers that may lead to risk aversion.

The OEP intends to identify the most significant blockers and practical opportunities for addressing them, with the findings potentially informing its future reporting, advice and engagement with government and regulators. Responses are invited from land managers, practitioners, businesses, regulators and environmental organisations, among others, by 14 December 2026.