High Court hears important habitats case relating to water abstraction in the Norfolk Broads

Norfolk Broads

On 7-8 July 2022, Mr Justice Johnson heard argument in R(Harris) v Environment Agency: a challenge to the Environment Agency's approach to the investigation and assessment of the impacts caused by water abstraction (principally agriculture and public water supply) on the protected fenland habitats of the Norfolk Broads SAC and SPA. The Agency has, since 2009/10, been investigating impacts on protected sites in the Ant Valley and in 2021 published a Report setting out conclusions that changes needed to be made to a number of permanent abstraction licences in order to protect the three sites which it had considered. The claimants argued that the Agency had unlawfully confined its consideration of the impact of the 240 licences considered to the three sites that were the subject of the investigation, when the modelling showed a credible risk of impacts on other SSIs within the Broads. The claim raises important questions as to: 1) the meaning of Article 6(2) of the Habitats Directive, specifically around the relevance of funding and resourcing issues to the identification of appropriate steps; 2) the scope of the Regulation 9(3) duty to have regard to the requirements of the Habitats and Birds Directive in a context where the competent authority is the sole agency with responsibility for abstraction licensing; and 3) whether Article 6(2) was "recognised" as having direct effect prior to the end of the implementation period for the European Union (Withdrawal) Act 2018. Matthew Dale-Harris acted for the Agency.

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