Ruling this week in Harris vs Environment Agency [2022] EWHC 2264 (Admin), Mr Justice Johnson held the Environment Agency failed to do enough to protect rare wetland species and habitats in the Norfolk Broads from the impact of water abstraction licenced by the Environment Agency for agricultural and other purposes. He found the Environment Agency acted irrationally, in breach of European law (the Habitats Directive) and in breach of domestic law.
In his decision, Johnson J recognised and applied a key, but little-known, legal provision in the UK’s EU-exit legislation, which says rules in European Directives remain enforceable against UK public authorities post-Brexit if those rules had been recognised by a court as being enforceable prior to Brexit. In Harris, the provision applied to rules under the Habitats Directive.
He also held the Environment Agency could not use lack of funding as a valid justification for failing to comply with its legal duties in this case.
Penny Simpson, environmental law partner at Freeths, who represented claimants Mr and Mrs Harris, said: ‘This is a very important court judgment for both East Anglia and the UK.
‘For East Anglia there must now be significant and urgent work by the Environment Agency to prevent damage from water abstraction to the large Broads conservation area.
‘For England and Wales, we now know that public authorities must take appropriate steps to prevent harm to sites protected under the Habitats Directive.
‘For the UK as a whole, this case has wide-reaching implications. It recognises that, even though the UK has left the EU, the UK has not escaped the direct influence of European Directives if, prior to Brexit, those rules had been found by a court to be directly enforceable against public authorities.
‘Where this applies, individuals can continue to rely upon those rules against public authorities. This would be the case even if Parliament were to amend or remove specific existing domestic legislation which implements a European Directive.’
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