TIMOTHY CHARLES HARRIS v ENVIRONMENT AGENCY

A competent authority may be required to act proactively where it has information indicating a risk of deterioration to protected European sites, even though the precise extent of that duty under regulation 9(3) remains a matter for fuller argument. Resource constraints and programme boundaries are relevant, but they do not necessarily answer the duty.

In a highly technical environmental assessment, the selection of flow standards is a matter of judgment attracting a wide margin of discretion. The court will intervene only for irrationality or another public law error. Reliance on expert advice is not conclusive if the advice contains such an error, but strong evidence is required to establish irrationality.

Timothy and Angelika Harris sought permission to apply for judicial review of Environment Agency decisions reflected in a report concerning the effects of licensed water abstraction on three SSSIs in the Ant Valley, Norfolk.

Ground 1 alleged that the Agency had unlawfully confined its investigation despite information indicating risks to other parts of the Broads European sites, contrary to Article 6(2) of the Habitats Directive and regulation 9(3) of the Conservation of Habitats and Species Regulations 2017. Ground 2 challenged the flow standards selected and the conclusion that the recommended measures would meet the conservation objectives without adversely affecting site integrity.

1. Ground 1. Permission was granted. The court accepted that the Environment Agency had to be able to allocate scarce resources, and that it could not be required to expand the Restoring Sustainable Abstraction programme indefinitely. Nevertheless, it was arguable that, once the Agency had information indicating that other protected sites might be affected by identified abstraction licences, regulation 9(3) imposed a duty to take some proactive steps to address the risk, whether within that programme or otherwise.

2. The question of the obligations imposed on the Agency after Brexit by regulation 9(3), read with the relevant provisions of the European Union (Withdrawal) Act 2018, would benefit from fuller argument. The court therefore expressed no final view on the proper construction of that duty.

3. Ground 2. Permission was refused. The selection of flow standards was not prescribed by legislation or guidance, and there was no requirement to apply identical standards to every reach of a river. It was therefore a matter for the Agency’s judgment, subject to irrationality or another public law error.

4. The Agency had obtained and followed Natural England’s expert advice. Reliance on expert advice would not necessarily defeat judicial review if the advice contained a public law error which infected the decision: see Wealden District Council v Secretary of State for Communities and Local Government [2017] EWHC 351 (Admin). However, strong evidence would be required to establish irrationality in the expert judgment. The evidence did not meet that threshold, and the Agency had properly considered the technical results and anticipated licence conditions.

5. The application for permission was therefore granted on ground 1 and refused on ground 2.