On Tuesday, the High Court heard a case brought against the Environment Agency by husband and wife Tim and Geli Harris,to stop the abstraction of water damaging internationally important wetlands in the Norfolk Broads.
The campaigners, represented by law firm Freeths, argued that the Environment Agency was legally obliged under the the EU-derived Habitats Directive to protect sites - such as Special Areas of Conservation (SAC) and Special Protection Areas (SPAs) - by reducing abstraction, and that it had failed to do enough to protect the Ant Valley SAC in the Norfolk Broads.
In Norfolk, the ruling will require the regulator to investigate the impacts of abstraction on a much larger part of the SAC than it had done previously, and to ensure risks are addressed, but it has also set a notable legal precedent with wide-reaching implications.
In deciding the case, Freeths said that the High Court applied “a key, but little-known”, legal provision in section 4 of the the EU-UK Withdrawal Agreement, which says that even though the UK has left the EU, rules in European Directives remain enforceable against UK public authorities if the rules within them had been recognised by a court as being enforceable - directly effective - prior to Brexit.
In the Harris case, this legal provision applied to the enforceability of rules under the Habitats Directive which protect designated conservation areas, and underpins protected site law, and nutrient and water neutrality rules, amongst others.
This means that even if the government were to implement regulatory changes or seek to change domestic legislation, those provisions within EU Directives which had applied with direct effect before Brexit, will still stand.
Penny Simpson, environmental law partner at Freeths LLP, who brought the case for the Harrises, said the judgement was “very important”.
“For the UK as a whole, this case has wide-reaching implications,” she said. “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.”
During her leadership campaign, the UK’s new Prime Minister Liz Truss said that she would “review” swathes of Brussels’ ‘red tape’, and seek to scrap nutrient neutrality rules which have held up development around England, but which green campaigners say are a vital environmental protection.
Simpson told ENDS that yesterday’s ruling would have implications for any plans to change nutrient neutrality rules, and that some provisions within the EU’s Environmental Impact Assessment (EIA) Directive, and Landfill Directive, would also be impacted by it.
Freeths said that the High 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, despite the fact that the availability of funding could be relevant to how those duties may be met.
Commenting, an Environment Agency spokesperson said: “We are working to restore, protect and enhance the environment but like every public organisation we have limited resources, so focus our efforts on the greatest threats to the environment.
“Originally the scope of this investigation was to evaluate the impacts of abstraction in the Ant Valley to protect the Ants Broad and Marshes SSSI. As a result of the judgment in this case we will now look at how we can expand our work to cover further protected sites whilst recognising the resource constraints.
“We remain committed to working with landowners, abstractors and DEFRA bodies to ensure that we continue to address unsustainable abstraction.”
It is not known if the Environment Agency will seek to appeal the ruling.
You can read the full judgement here.