The Supreme Court ordered Environment Agency To reduce water extraction and protect England’s rare wetland habitat, in the historic case European nature conservation laws remain in place despite Britain’s departure from the European Union.
Tim and Gilly Harris’ victory means the Environment Agency will have to address the damage caused by removing water from wetlands of international importance in Norfolk Broads, home to rare species including the Norfolk Power dragonfly and the swallowtail butterfly.
Water from England’s largest protected wetland – located in one of the driest areas in the country – is mostly extracted so farmers can irrigate crops.
The pair, who are farmers themselves, have spent £1m on legal challenges over more than a decade, winning a major battle six years ago when general investigation Found that extraction licenses harm endangered plants such as Finn the orchid in Catfield Venuea Site of Special Scientific Interest (SSSI) that they partially own.
But they took the Environment Agency’s case to court again because it failed to stop extraction, which reduced groundwater flow at other wetland sites of international importance through the Broads.
Tim Harris said: “My wife and I are pleased that the Supreme Court has ruled that there must now be urgent action by the Environment Agency to prevent harm from water extraction for all members of society. Special storage area and its unique ecosystems.”
Farmers argue that reducing extraction will harm their ability to grow food such as potatoes, a high-value crop grown on dry land near the Broads and irrigated with water from it.
But Harris said reducing extraction would simply reduce some crops – and the value of the land – but encourage farmers to grow crops that are less water-starved. He said, “It’s not about food security, it’s about crop selection. They should grow wheat, they can still grow potatoes, it’s just that irrigation adds about 15% to the crops and the value of the land.”
“Should we destroy the Broads for that extra value in farmland when the greatest revenue comes from tourism?”
When deciding the case, the court applied an unknown legal provision in Britain’s exit from the European Union Legislation that states that despite the UK leaving the EU, rules in European directives – in this case, the Habitats Directive – remain enforceable against UK public authorities if such rules are recognized by a court as enforceable prior to Brexit European.
The court also ruled that a lack of funding for the Environment Agency was not a valid reason for its failure to fulfill its statutory duties.
Benny Simpson, partner in environmental law at Freeths, who brought the Harrises family case, said: “This is a very important court ruling for both East Anglia and the UK. For East Anglia, there must now be significant and urgent action by the Environment Agency to prevent the damage caused. For water extraction for large-scale conservation area.
“For England and Wales, we now know that public authorities must take appropriate steps to prevent damage to sites protected under the Habitat Directive as these public authorities are vested with the statutory powers to do so.”
The Environment Agency said it has already notified 20 Ant Valley strip license holders that their licenses should be reduced, restricted or revoked. A company spokesperson said: “We work to restore, protect and enhance the environment, but like every public organization we have limited resources, so focus our efforts on the biggest threats to the environment.
“Originally the scope of this investigation was to assess the effects of stripping in Ant Valley to protect the SSSI’s Ant Extension and Swamps. As a result of the judgment in this case, we will now look at how we can expand our work to more protected sites while recognizing resource limitations.”
“We remain committed to working with landowners, extractors and Defra bodies to ensure we continue to address unsustainable divestment.”
A spokesperson for the National Farmers Union said the region’s agricultural sector is working with it Eastern Water Resources on a long-term strategic plan for water resources, and that farmers are already taking steps to maximize water use efficiency. “It is important that any solutions to the water resource challenges we face find the right balance between food production and environmental protection.”
“You might ask why individuals and not public bodies or conservation charities have submitted this judicial review, which represents a landmark ruling on the continuing role of European conservation laws in post-Brexit Britain,” Harris said.
Public bodies such as the Broads Authority say they work in concert with all stakeholders. What all sailors know is that convoys move at the speed of the slowest ship, not much at all if the slowest ship doesn’t pull an anchor. Unfortunately, nature can’t wait to get in the boat.”