Marianne Bennett (on behalf of Lakes Against the Nuclear Dump), R (on the application of) v Environment Agency

A competent authority considering an abstraction licence must have regard to relevant Habitats Directive requirements and take reasonable steps to inform itself about potential effects on protected species and sites. The duty does not automatically require the authority to undertake the assessment required for a wildlife licence or an appropriate assessment. Judicial review applies a restrained Wednesbury standard, particularly where the authority has relevant technical expertise. A claimant must identify credible evidence of a real, rather than hypothetical, risk before failure to investigate or assess can be arguable. Existing evidence, expert consultation and precautionary screening may provide a sufficient basis for excluding likely significant effects.

The claimant, acting for Lakes Against the Nuclear Dump, sought renewed permission to challenge the Environment Agency’s grant of Sellafield Limited’s abstraction licence for groundwater and surface water associated with construction of BEPPS 2. The challenge alleged breaches of the Conservation of Habitats and Species Regulations 2017, the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 and the Water Resources Act 1991.

The issues concerned promptness, the Environment Agency’s duties regarding Natterjack Toads and the River Ehen Special Area of Conservation, the need for further hydrogeological investigation or assessment, and the consideration of relevant matters under section 38 of the Water Resources Act 1991.

1. Promptness. The legally operative decision was made on 12 May 2025, when the promptness period began. Nevertheless, the claimant acted promptly overall. The Environment Agency did not provide the licence or its conditions until 11 August 2025, it was not available on the public register, and the claim was issued 11 days later. Time was extended for service of the sealed claim form and, insofar as required, for issuing the claim.
2. Protected species. Regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 required the Environment Agency to have regard to the Habitats Directive requirements. It did not require the Agency to conduct the Natural England assessment associated with deciding whether a wildlife licence should be granted: see R (Prideaux) v Buckinghamshire CC [2013] Env LR 13 and R (Morge) v Hampshire CC [2011] 1 WLR 269. The Agency identified the Natterjack Toad population, obtained internal fisheries and biodiversity advice, considered a precautionary radius of influence and obtained further expert advice. There was no arguable failure to have regard to the Directive or to inform itself reasonably.
3. Harris distinguished. Harris v Environment Agency [2022] PTSR 1751 concerned an existing identified risk of deterioration to protected habitats and the robustness required when reviewing existing abstraction licences. It did not materially govern the assessment of the protected species issue here.
4. Protected site. Regulation 63 required an appropriate assessment only where the abstraction was likely to have a significant effect on a European site. The Environment Agency’s screening and consultation process identified relevant receptors, including Atlantic salmon, but the River Ehen SAC was outside the applicable screening parameters. The claimant identified no credible or feasible risk, rather than a hypothetical one, requiring further assessment. The evaluative judgment was reviewable on Wednesbury grounds and attracted appropriate deference: see R (Boggis) v Natural England [2010] PTSR 725, R (Wyatt) v Fareham Borough Council [2023] PTSR 1952, R (Mott) v Environment Agency [2016] 1 WLR 4338 and Smyth v Secretary of State for Communities and Local Government [2015] PTSR 1417.
5. Material considerations and outcome. The Natterjack Toad population, River Ehen SAC, Atlantic salmon and groundwater impacts were considered. Later guidance making a hydrogeological impact assessment mandatory did not establish that the information available when the licence was granted was insufficient. Permission was refused on all grounds.

The judgment describes an earlier refusal of permission on 17 October 2025 by Andrew Kinnier KC, sitting as a Deputy Judge of the High Court. The claimant renewed the application, which was refused by this court.