Timothy Charles Harris & Anor. v The Environment Agency & Anor.

Where a public authority has acted unlawfully, an effective remedy may require a mandatory order even though the authority is expected to comply with the judgment. The court should require the authority to formulate a plan where that is necessary to remedy the breach, but should not prescribe the substantive statutory measures where Parliament has left their choice to the authority. Disclosure of the plan to the successful claimants may be necessary to make the remedy effective. The court should avoid converting judicial review into continuing supervision of future decision-making, or bypassing the permission requirement for a fresh claim. Non-compliance with the order is ordinarily addressed through the contempt procedures.

The claimants had succeeded in an earlier judicial review concerning the Environment Agency’s breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive in relation to The Broads Special Area of Conservation. The court directed written submissions on remedy. The claimants sought a mandatory order requiring the Agency to formulate, disclose, publish and implement a detailed remedial programme, with liberty to apply. The Agency contended that the earlier judgment was sufficient, or that any order should not supervise its future compliance. The issues were whether an effective remedy required a mandatory order, what the order should require, and whether publication, implementation, continuing supervision or liberty to apply were appropriate.

1. Effective remedy. The claimants were presumptively entitled to an effective remedy for the unlawful breach. That entitlement arose both at common law and from the effective-remedy principle applicable through the European Union (Withdrawal) Act 2018. The public status of the Environment Agency and the expectation that it would comply with the judgment did not justify withholding relief, particularly given the history of non-compliance.
2. Scope of mandatory order. The court could not prescribe the precise substantive steps by which the Agency was to discharge its obligations. The Agency had discretion as to how it complied, but no discretion as to whether it complied. It was therefore appropriate to require it to formulate a plan identifying the measures it intended to take, the expected completion time, and, so far as practicable, the scientific and technical basis for those measures.
3. Disclosure and publication. Disclosure of the plan to the claimants was necessary. Without it, they could not know the practical outcome of the proceedings or assess whether the proposed measures would secure compliance. Publication and disclosure to Natural England were unnecessary because the claimants could disclose or publish the plan themselves, with permission under Civil Procedure Rules Part 31 rule 22(1)(b).
4. Future implementation and supervision. The court declined to require implementation of the plan. Scientific and technical work remained capable of changing the plan, and implementation would involve a rolling review of live decision-making rather than ordinary retrospective judicial review. The order should not avoid the requirement for permission for a fresh claim under Civil Procedure Rules Part 54 rule 4 and section 31(3) of the Senior Courts Act 1981.
5. Final order. The Agency was required, by 4 pm on 7 December 2022, to provide the claimants with details of the measures it intended to take to comply with article 6(2), an indication of the intended completion date, and, so far as practicable, the scientific and technical basis for its assessment. Liberty to apply was refused; non-compliance could be addressed under Civil Procedure Rules Part 81.

The judgment concerned remedy following the claimants’ success in the earlier judgment dated 6 September 2022, cited as [2022] EWHC 2264 (Admin). The present court made a limited mandatory order.