TIMOTHY CHARLES HARRIS & Anor v THE ENVIRONMENT AGENCY

[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Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered.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.

EPA’s Water Abstraction Volume Estimator

Registration of a water abstraction is required when then maximum daily abstraction is expected to exceed 25 m3/d and is not required for any abstraction below this amount. This document can be used to estimate abstraction volumes for various sectors where the abstraction volume is not directly monitored.

The estimates in this document have been prepared in consultation with the various sectors who abstract water and following review of relevant studies on abstraction volume

The following sectors are known to have abstractions greater than 25 m3/d:
1. Agriculture (Livestock);
2. Agriculture (Irrigation);
3. Agriculture (Horticulture);
4. Drinking water supply (Public Supplies);
5. Drinking water supply (Group Water Schemes and large private supplies);
6. Aquaculture;
7. Golf course;
8. Hydropower;
9. Industrial (IPC/IED/Waste licensed);
10. Industrial of commercial (unlicensed));
11. Mining and quarrying;
12. Peat extraction;
13. Horse Racing Courses.

EPA QUBE hydrological assessment tool

https://www.catchments.ie/inside-the-epa-episode-1-hydrometric-and-groundwater-unit/

https://www.epa.ie/our-services/monitoring–assessment/freshwater–marine/rivers/water-level-and-flow-data/

Majority of sensors are EPA or OPW

Irish Water sensors not on the map ? eg sensors on Vartry ?

https://www.epa.ie/publications/monitoring–assessment/freshwater–marine/national-hydrometric-monitoring-programme-.php

https://scholar.google.com/scholar?q=EPA+QUBE+hydrological+assessment+tool&hl=en&as_sdt=0&as_vis=1&oi=scholart#d=gs_qabs&t=1657811264771&u=%23p%3DVPklk9eaMVAJ

https://scholar.google.com/scholar?q=EPA+QUBE+hydrological+assessment+tool&hl=en&as_sdt=0&as_vis=1&oi=scholart#d=gs_qabs&t=1657811322872&u=%23p%3DChwjNK1TifUJ

Vartry Water Treatment Plant (Wicklow): Irish Water Schedule of Commitments

29/05/18

The Determination of the Appeal by An Bord Pleanála for the Vartry Water Treatment Plant (Appeal Reference PL 27.247745 – Planning Reference 16 363) required the preparation of a Schedule of Commitments.


This is the document is submitted to Wicklow County Council in compliance with Appeal
Condition 2 (b).

The Condition is worded as follows:


2. The following shall apply in relation to mitigation measures and commitments:
(a) The mitigation measures and commitments identified in the Environmental Reports and other plans and particulars submitted with the planning application, and the further particulars submitted by the applicant at the oral hearing, shall be implemented in full by the developer, except as may otherwise be required in order to comply with the following conditions.
(b) All mitigation measures and commitments, including relevant matters which emanate from the planning conditions below, shall be compiled into a Schedule of Commitments, which shall be a single document, a draft version of which shall be submitted to the planning authority within three months of the date of this decision.
(c) No development including enabling works shall commence prior to receipt of the written agreement of the planning authority in relation to a final Schedule of Commitments. In default of agreement the matter shall be referred to An Bord Pleanála.

Mitigation Measures


Operational

3. The operation of the proposed development shall be in accordance with the following:
(a) Water abstraction shall not exceed the established volume of eighty million litres per day.
(b) A minimum compensation flow of five million litres per day shall be discharged.
(c) The method of delivery of this flow shall be by way of the seven sand filter beds which are to be retained.

(d) The branch pipework proposed to deliver the discharge shall have a capacity of at least fifteen million litres per day and the valve controlling the branch pipework shall be capable of remote control and variability.
(e) The practice of ‘back pumping’ shall cease.
(f) All supernatants shall be recycled to the head of the works.
(g) Within three months of the operation of the proposed development the existing water abstraction at Annagolen Bridge shall cease.
(h) The existing interceptor channel shall be retained for the delivery of surface water only.
(i) All chemical dosing shall be relocated to the site of the new water treatment plant and the existing infrastructure adjacent to the river fully decommissioned.

Hydrology


4. The following shall apply in relation to the monitoring of flow:


(a) Within six months of the date of this decision the developer shall install and maintain two hydrometric gauging stations, one on-site in the Vartry River and a second one further down the Vartry River catchment, which shall be permanently established with a fixed structure incorporating suitable fish passage and shall accurately measure and record in real time the combined flows from the water treatment plant discharge and the spillway channel.
(b) The locations shall be subject to the written agreement of the planning authority following consultation with the Environmental Protection Agency and Inland Fisheries Ireland.
(c) The existing weir in the discharge chamber shall be calibrated and its performance evaluated.
(d) The availability of data shall be in accordance with the requirements of the planning authority. The developer shall also make information available to the planning authority on request and shall present an annual report summarising key issues which shall also be made available for public inspection by the developer.

Aquatic Ecology


5 The developer shall undertake a wetted area fisheries habitat mapping and hydrological monitoring to include a fisheries area assessment. Details shall be submitted to the planning authority and the development shall comply with the requirements of the planning authority following consultation with the Environmental Protection Agency and Inland Fisheries Ireland. The duration of this assessment shall be for the construction period.

Environmental Management


6. An Environmental Management Plan and Invasive Species Management Plan shall be submitted by the developer to the planning authority.
(a) This shall include inter alia a construction programme for the works, hours of construction and a traffic management plan and shall incorporate the Final Schedule of Commitments to include measures for the protection of the natural environment and to mitigate noise and air quality impacts.
(b) The developer shall retain the services of a suitably qualified Environmental Clerk of Works to monitor and record the implementation of the mitigation measures, the impact of works on the environment and to record and investigate any environmental complaints received from the public. This person shall be given power to suspend or take further mitigation measures as necessary.
(c) The written agreement of the planning authority in relation to the above measures shall be obtained prior to commencement of any works including enabling works.

Report

Draft AIE

Reports on abstraction volumes since plant commissioning

Reports on compensatory flow since plant commissioning

Locations of two hydrometric gauging stations on the River Vartry (one station is below Ashford, at Mount Usher Gardens)

Annual reports on flow gauging data

Invasive species management plan

Environmental Emergency Preparedness and Response Plan

Report on the decommissioning of abstraction operations at Annagolen bridge

Report on retention of existing interceptor channel, and pathway for treatment chemicals / treated water to river

Note: EPA audit report gives a good overview of upgrade, recent chemical incidents, and monitoring systems at the WTP

Regulated Packaged Water Establishments in Ireland

The European Union (Natural Mineral Waters, Spring Waters and other Waters in Bottles or Containers) Regulations 2016 (S.I. No. 282 of 2016) places a responsibility on the producers of bottled water to ensure the source is protected and sets the quality and the treatment standards for the final product.

The Food Safety Authority of Ireland is the competent authority for enforcement of these Regulations.

Locations of packaged water companies

Non Irish Reports

Water Abstraction and Discharges (Northern Ireland)

Digital datasets of water abstraction licence application locations (except public water supplies) in SHP and GML format.

https://www.daera-ni.gov.uk/publications/abstractions-and-discharges

https://www.daera-ni.gov.uk/articles/abstraction-and-impoundment-licensing-requirements

Abstraction & Impoundment Licensing Team
Water Management Unit
NIEA
17 Antrim Road
Tonagh
Lisburn
County Antrim
BT28 3AL

Email: AIL@daera-ni.gov.uk

Northern Ireland abstraction database in Excel (840 records)