Background
Timothy Harris sought judicial review of Natural England’s response to nutrient pollution at Catfield Fen, part of the Ant Broads and Marshes Site of Special Scientific Interest and the wider Broads Special Area of Conservation. Harris owns the eastern part of the Fen. He alleged that phosphate- and nitrogen-laden runoff from neighbouring farmland crossed Fenside road and entered the protected wetland through roadside drains known as grips, causing eutrophication and threatening its ecological integrity.
Natural England had received concerns about runoff and the grips since 2021. Reports commissioned by Harris recorded substantial nutrient exceedances and identified a pathway from the neighbouring fields into the Fen. Natural England’s own enforcement material acknowledged the risk, and its later sampling found phosphate concentrations above the applicable target throughout the Fen, with particularly high readings near its northern edge. Although Natural England advised landowners, prepared a pollution-reduction plan, investigated the site, and eventually required the highway authority to seek assent before cutting more grips, no effective mitigation was in place on the land identified as the probable principal source.
The Court’s Holding
Mrs Justice Lieven rejected Harris’s argument that Natural England automatically breached its duties as soon as it learned of a risk and did not immediately remedy it. Regulation 9(1) of the Conservation of Habitats and Species Regulations 2017 and Article 6(2) of the Habitats Directive give the regulator time to investigate and exercise professional judgment about appropriate steps. The precautionary principle makes the protective duty demanding, but it does not eliminate the regulator’s discretion over investigation, timing, and choice of measures.
The Court nevertheless upheld the alternative challenge. By the time of judgment, Natural England’s failure to take further active protective measures was irrational and breached Regulation 9(1) and Article 6(2). The evidence established serious nutrient exceedances, an effectively incontrovertible pollution pathway from the neighbouring farmland through the road and grips into the northern dyke, and hydrological connectivity with the wider Fen. Natural England could not lawfully wait for proof of deterioration across the whole site: the statutory duty is precautionary and requires action to avoid further deterioration or significant disturbance. The Court declared a breach but deferred the question of any further orders for additional submissions.
Key Takeaways
- A risk to a protected habitat triggers a duty to take appropriate steps, but does not create an automatic breach the moment the regulator learns of that risk.
- Regulators retain professional discretion to investigate and select measures, subject to ordinary public-law review and the Habitats Directive’s precautionary principle.
- Where the source, pathway, nutrient exceedances, and risk are sufficiently clear, further investigation alone may be inadequate and active protective steps are required.
Why It Matters
The judgment clarifies the boundary between regulatory discretion and enforceable environmental obligations. Courts will allow expert regulators reasonable time and latitude to investigate, but that deference ends where established evidence and the regulator’s own findings show a clear risk to a protected site and the response remains practically ineffective.
For authorities responsible for protected habitats, the decision underscores that Article 6(2) is preventive rather than merely reactive. A regulator need not wait for proof that pollution has caused measurable deterioration throughout an entire protected area before taking active steps.