The case concerned a judicial review of the Environment Agency’s decision not to expand the scope of an investigation that it conducted into the effect of 240 licences for water abstraction. That investigation concerned the effect on just three Sites of Special Scientific Interest. The Claimants’ case was that the Environment Agency was required to consider the impact of the licences across the whole of the Broads Special Area of Conservation, and, once aware of potential risks to other sites, it was obligated to address those potential risks.
The Claimants argued that the Environment Agency was in breach of its obligation under article 6(2) of the Habitats Directive to avoid the deterioration of protected habitats and disturbance of protected species. They argued that this obligation has effect in domestic law by reason of regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 which requires the Environment Agency to “have regard” to the Habitats Directive. They argued that, in any event, article 6(2) of the Habitats Directive is enforceable by the domestic courts. They further argued that the decision not to conduct a more expansive investigation was irrational.
Meaning of the “have regard duty”
Johnson J held that the natural and conventional approach to the “have regard” duty meant that the Environment Agency was required to take account of the requirements of the Habitats Directive but could depart from its requirements if there is good reason to do so. In considering, however, whether a departure could be justified, it was relevant that the object of the “have regard” duty is “requirements” rather than advice or guidance as “requirements” are usually mandatory. He held, therefore, that “in this context, the duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements”. He concluded that “the scope for departure that is ordinarily inherent in the words “have regard to” is considerably narrowed”.
Are the article 6(2) obligations enforceable?
It was common ground that the question of whether article 6(2) was enforceable irrespective of regulation 9(3) depended on the application of section 4(2)(b) of the European Union (Withdrawal) Act 2018. The question for the Court was, therefore, whether the obligations under article 6(2) are of a kind recognised by the CJEU, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020. Johnson J concluded that by reason of section 4 of the 2018 Act, article 6(2) is “recognised and available in domestic law and is to be enforced accordingly”.
Had the article 6(2) duty been complied with?
The Environment Agency accepted that there was a potential risk to other sites beside the three SSSIs. Johnson J concluded that the review “was not effective in ensuring that abstraction does not cause damage to protected sites and there thus remains a generalised risk from abstraction (particularly abstraction under permanent licences) across the entire SAC”. He further concluded that “Having regard to the precautionary principle, that is sufficient to trigger the article 6(2) duty” as it was “sufficient that a generalised risk has been established… to require “appropriate steps” to be taken”. Johnson J held that “What those steps might be depends on the particular circumstances, the expert advice of Natural England and the expert judgement of the Environment Agency” but that the “steps taken must, however, be sufficiently robust to guarantee that abstraction of water does not cause damage to ecosystems that are protected under the Habitats Directive”. He noted that although the Environment Agency “has a broad discretion as to the steps that should be taken to achieve that end” and that “A court will be slow to question the Environment Agency’s expert assessment as to the steps that should be taken”, it is “not open to the Environment Agency to take no steps – that is a breach of article 6(2)”.
Johnson J held that “the Environment Agency has not taken sufficient steps in respect of the risks to sites in the SAC (beyond the three SSSIs) posed by abstraction in accordance with permanent licences”. It was the only authority with the power to vary or revoke such licences, and it had, therefore, acted in breach of article 6(2). Although the Environment Agency “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”. It had failed to undertake “any sufficient analysis of the steps needed to address the impact of abstraction in accordance with permanent licences” such that there had been a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.
Johnson J also held that the rationality challenge succeeded. Having decided to comply with the obligation imposed by article 6(2), it was irrational “for the Environment Agency to limit its investigation to just three sites without undertaking further work to ensure compliance with article 6(2) across the entire SAC”.
This judgment confirms the applicability of article 6(2) of the Habitats Directive in the UK despite the UK having left the European Union. It also helpfully sets out what is required of public authorities when purporting to discharge the obligations created by article 6(2). The judgment makes clear that funding constraints, although relevant when determining the level of resources to deploy in investigating potential risks and the steps that should be taken, cannot justify breaching article 6(2).
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