Legal comment: Why EU nature conservation laws have survived Brexit - for now

The Court has ruled that despite Brexit, certain parts of the EU-derived Habitats Directive remain enforceable by domestic courts, and has ordered the Environment Agency to prepare a plan for complying with the Directive in respect of the Broads Special Area of Conservation. However, the claimants’ victory may prove short-lived, writes Angus Evers.

Angus Evers is a partner at law firm Shoosmiths

In Harris v Environment Agency ([2022] EWHC 2264 (Admin)), the Planning Court had to determine a dispute over the impact of water abstractions on protected ecosystems in the Norfolk Broads. 

Two of the key issues were whether the Environment Agency (EA) was in breach of an obligation in the EU Habitats Directive to avoid the deterioration of protected habitats and disturbance of protected species, and whether that obligation was still enforceable in domestic law after Brexit.

The claimants, Mr and Mrs Harris, owned land at Catfield Fen in the Norfolk Broads. The factual history of the case was long and complex, but the claimants’ challenge focused on the EA's refusal to broaden an investigation under its ‘Restoring Sustainable Abstraction’ (RSA) programme from three Sites of Special Scientific Interest (SSSIs) - one of which included Catfield Fen - to other SSSIs within the Broads Special Area of Conservation (SAC). The Broads SAC included 28 SSSIs in total.

The EA claimed that the RSA programme was closed to new sites and its limited resources did not enable it to embark on further investigations, despite evidence that water abstractions might also have adverse effects on other sites within the Broads SAC.

The claimants brought judicial review proceedings against the EA on four grounds:

  1. the EA had breached its duty under regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations) to ‘have regard to’ the Habitats Directive;

  2. Article 6(2) of the Habitats Directive was enforceable by domestic courts;

  3. the EA had breached its duty under Article 6(2) of the Habitats Directive to avoid the deterioration of protected habitats and disturbance of protected species; and

  4. the EA’s decision not to expand the scope of its RSA programme was irrational.

The court ruled in the claimants’ favour on all four grounds.

On the first issue, the EA argued that a duty to ‘have regard to’ the Habitats Directive merely required it to consider the Directive when exercising its functions. The court, however, disagreed, noting that the object of the duty was the mandatory requirements of the Directive and not advice or guidance. As the relevant public body with responsibility for fulfilling those requirements, the EA had to discharge them.

The second issue brought into play section 4 of the European Union (Withdrawal) Act 2018 (Withdrawal Act). This states that provisions of EU legislation that were recognised by a court before the UK's departure from the EU still have direct application in domestic law and continue to be enforceable in domestic legal proceedings. The court ruled that this applied to Article 6(2) of the Habitats Directive.

Although the court accepted that it should not interfere with any analysis by the EA of the steps needed to address the impacts of abstractions in the Broads SAC, the reality was that the EA had not undertaken any such analysis. The court therefore ruled against the EA on the third issue, also ruling that a lack of resources did not justify inaction.

On the final issue, the court ruled that, having committed itself to discharging its duties in relation to the three SSSIs investigated under its RSA programme, it was irrational for the EA not to expand that programme with no alternative mechanism in place to ensure compliance with Article 6(2).

The court ordered the EA to publish a plan by 7 December 2022 of the measures to be taken by it to comply with its duties under Article 6(2) of the Habitats Directive. Indeed, documents seen by ENDS today show that the regulator announcing that it will review all water abstraction licences in the Broads SAC to achieve compliance with the Directive.

Although a notable win for the claimants, the prospect of bringing other claims based on the continuing effect of directly applicable EU law is threatened by the Retained EU Law (Revocation and Reform) Bill currently going through Parliament. 

The Bill would repeal section 4 of the Withdrawal Act on 31 December 2023 and revoke all ‘EU-derived subordinate legislation’ (including the Habitats Regulations) unless expressly assimilated into domestic law.

Angus Evers is a partner at law firm Shoosmiths