[UK Water Abstraction Case]
Date: 6 September 2022
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
The claimants, Angelika and Timothy Harris, live in the Norfolk Broads. They are concerned that water abstraction is causing irremediable damage to the environment, including ecosystems that are legally protected. Their intervention was instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. They challenge, by judicial review, the Environment Agency’s refusal to expand the scope of an investigation that it conducted into the effect of 240 licences for abstraction. That investigation concerned the effect of abstraction on just three Sites of Special Scientific Interest (“the three SSSIs”).
The claimants’ case is that:
(1)
the Environment Agency is in breach of an obligation under article 6(2) of the EU Habitats Directive (92/43/EEC) (“the Habitats Directive”) to avoid the deterioration of protected habitats and disturbance of protected species.
(2)
The obligation under article 6(2) of the Habitats Directive has effect in domestic law by reason of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) which requires the Environment Agency to “have regard” to the Habitats Directive.
(3)
Irrespective of the effect of regulation 9(3) of the Habitats Regulations, article 6(2) of the Habitats Directive is enforceable by the domestic courts.
(4)
The Environment Agency’s decision not to conduct a more expansive investigation into the impact of licenced water abstraction is irrational.
The Environment Agency accepts that it must have regard to article 6(2) of the Habitats Directive. It maintains that it has done so and that it has, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputes that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. In any event, it maintains that it is acting compatibly with the requirements of article 6(2).
[The Claimants] have been concerned for many years about the condition of fenland in the area where they live and own land. They are particularly concerned about the impact of the abstraction of groundwater for agricultural and other purposes.
Habitats Regulations require […] a precautionary approach and to take action to reduce abstraction where there was a risk that abstraction might cause such adverse effects.
Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2005] 2 CMLR 31
The Habitats Directive must be interpreted in accordance with the precautionary principle
Anticipatory measures are required to prevent deterioration before it occurs: Case C-418/04 Commission v Ireland [2007] ECR I-10997 at [207]-[208]
Where it appears that there is a risk of deterioration of a protected habitat, article 6(2) of the Habitats Directive requires that “appropriate steps” are taken to avoid that deterioration: Case C-399/14 Grüne Liga Sachsen eV v Freistaat Sachsen EU:C:2016:10 [2016]
This means that where it becomes apparent that there may be a risk to a protected habitat or species as a result of the licenced abstraction of water, article 6(2) imposes an obligation to review the applicable licences: Grüne Liga at [44]. 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: Grüne Liga at [53].
The claimants’ case is that the Environment Agency acted unlawfully by limiting its investigation to the three SSSIs. They say that once it decided to review the 240 abstraction licences, it was required to consider their impact across the entirety of the SAC. Further, once the Environment Agency was aware of potential risks to other sites, it was obliged to address those potential risks.
Water abstraction involves the taking of water from the underlying aquifers and thereby potentially reduces the through-flow of base-rich water which is a key characteristic of the SAC. It also potentially changes the ground chemistry, impacting on surface ecology.
There is therefore the clear potential for water abstraction to cause damage to wetland ecosystems.
The Environment Agency has a broad discretion as to the steps that should be taken to achieve that end. The cost of different options is a relevant factor that can legitimately be considered. A court will be slow to question the Environment Agency’s expert assessment as to the steps that should be taken. It is, however, not open to the Environment Agency to take no steps – that is a breach of article 6(2).
The Environment Agency must act unless it is satisfied that there is no risk of significant damage.
Environment Agency cannot absolve itself from compliance with article 6 by pointing to work done by other public authorities.
Although it has taken account of article 6, it has not justified its failure to take steps in respect of the risks (particularly risks posed by abstraction in accordance with permanent licences), and it is therefore in breach of its obligation under regulation 9(3) of the Habitats Regulations. The claimed lack of resource does not justify these breaches.
The Environment Agency has not undertaken any sufficient analysis of the steps needed to address the impact of abstraction in accordance with permanent licences.
The Environment Agency must (by reason of regulation 9(3) of the Habitats Regulations) have regard to the requirements of article 6(2) of the Habitats Directive. It must therefore be in a position to justify any departure from those requirements.
It follows that the Environment Agency must take appropriate steps to ensure that, in the SAC, there is no possibility of the deterioration of protected habitats or the significant disturbance of protected species as a result of licensed water abstraction. The Environment Agency has discharged that obligation in respect of three sites of special scientific interest. But it has not done so in respect of all sites within the SAC. That is because its review of abstraction licences was flawed and (at least in relation to permanent licences) it has not conducted a sufficient further review to address those flaws. It is therefore in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive.
