TIMOTHY CHARLES HARRIS & Anor v THE ENVIRONMENT AGENCY

Under regulation 9(3) of the Conservation of Habitats and Species Regulations 2017, a competent authority must take the requirements of the Habitats Directive into account. Where it is the principal body responsible for fulfilling those requirements, it must discharge them and cannot deliberately act inconsistently with them.

The precautionary duty under article 6(2) is triggered by a generalised risk of deterioration or significant disturbance. A prior licensing review shown to be flawed requires sufficiently robust further action. Costs and resources may affect how the duty is performed, but cannot justify taking no action. A site-focused investigation is permissible only if adequate alternative work addresses the remaining risks.

The claimants sought judicial review of the Environment Agency’s decision to limit an investigation into 240 water abstraction licences to three Sites of Special Scientific Interest within The Broads Special Area of Conservation. They alleged breaches of article 6(2) of the Habitats Directive, regulation 9(3) of the Conservation of Habitats and Species Regulations 2017, and the common-law principle of rationality.

The Environment Agency accepted that it had to have regard to article 6(2), but argued that its existing review processes and further planned work were sufficient. The central issues were the scope of the duty, the domestic enforceability of article 6(2), whether the duty had been breached, and whether limiting the investigation was irrational.

The claim succeeded on both the statutory and common-law grounds. The question of relief was deferred for further directions.

1. Regulation 9(3). The duty to have regard to the requirements of the Habitats Directive requires the Environment Agency to take those requirements into account. It does not impose an abstract duty on every competent authority to secure all compliance, unlike regulation 9(1). However, where the Environment Agency is the principal body responsible for fulfilling the relevant requirements, the scope for departure is considerably narrowed. It must discharge those requirements and cannot deliberately act inconsistently with them.
2. Domestic enforceability. Under section 4 of the European Union (Withdrawal) Act 2018, article 6(2) remained recognised and enforceable in domestic law. In Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij Case C-127/02, article 6(3), but not article 6(2), had been held to have direct effect. The close relationship between the provisions meant that article 6(2) was of a kind recognised as having direct effect. Natural England v Warren [2019] UKUT 300 (AAC) provided further support. It was immaterial that the earlier decision might have been reached per incuriam, since it had not been overturned or overruled.
3. Precautionary duty. Article 6(2) imposes a proactive and preventive obligation. Anticipatory steps are required where there is a risk of deterioration of a protected habitat or significant disturbance of protected species. It is insufficient to wait for demonstrable damage. A generalised risk from abstraction, arising from flaws in the earlier Review of Consents, was enough to trigger the duty. The required steps had to be sufficiently robust to guarantee that abstraction would not damage protected ecosystems.
4. Choice of measures. The Environment Agency had a broad discretion as to the steps required. Risk, the extent to which it was already addressed, cost, resources and technical constraints were relevant to how the duty was discharged. They could not justify taking no steps. There was no need to expand the RSA programme to every site if adequate alternative work addressed the risks. The position was different for permanent licences: some form of systematic review was required, and intervention could not be confined to cases shown to be seriously damaging. The Agency had to act unless satisfied that there was no risk of significant damage.
5. Rationality and outcome. Limiting the RSA programme to three sites was rational as a cost-benefit decision and was not inherently inconsistent with article 6(2). But, having undertaken to comply with that obligation, the Environment Agency acted irrationally by maintaining the limitation without any alternative mechanism capable of securing compliance across the SAC. It had breached article 6(2) and regulation 9(3). The claim succeeded.

not stated in the judgment.