Does the classification of a site as an SPA inevitably mean that it must be designated as an SSI?

Date:

01/09/2004

Source:

JPL

Matter:

Fisher - stone curlews

Does the classification of a site as a Special Protected Area (SPA) inevitably mean that it must be designated as Site of Special Scientific Interest (SSSI)?

The relationship between SPAS under the Birds Directive and SSSIs under the Wildlife and Countryside Act 1981 has been considered by the Court of Appeal in the case of R. (on the Application of Fisher) v English Nature 26th May 2004 Case No: C1/2003/1625. 12. By virtue of s.28 of the 1981 Act an SSSI is basically any area of land which is considered by English Nature to be of special interest by reason of any of its flora, fauna or geological or physiographical features. Under article 4 of the Birds Directive the species mentioned in Annex 1 shall be the subject of special conservation measures concerning their that there are important differences as to their objectives, there are close links between the statutory schemes as in England, the legal framework which in the Government's view secures protection of SPAs is their designation as SSSIs, supplemented since 1994 by the Habitats Regulations, which implement the Habitats Directive and provide for the protection of European Sites including areas classified as SPAs under Article 4(1) of the Birds Directive. So if a site were to be designated as a SPA but not designated as a SSSI this would weaken the ability to secure the site as a SPA. The Government therefore took the view that SPAs should always be made SSSIs so as to get the necessary legal underpinning of being a SSSI. It was also considered that it seemed incongruous to argue that a SPA is of international importance, but not of national importance. However English Nature had previously taken the view that sites such the Breckdand Farmland should not be designated as a SSSI where the birds only nested sporadically in the area; what are termed "temporary habitats". It decided to change this policy and in a letter dated 15th November 2000 confirmed Breckland Farmland as a SSSI on the ground of the site's "internationally important population of stone-curlew". It was this decision which was challenged by way of judicial review. The claimants raised various detailed arguments but the main challenge was on the basis that English Nature had taken into account immaterial considerations in confirming the designation. These were: -

(1) a perceived need to "underpin" SPA designation with SSSI status;

(2) a belief that it was axiomatic that if land met the criteria for SPA based on international interest then every single part of that land must meet the ciiteria for SSSI; and

(3) an assumption that there were only two possible outcomes - either (1) the land is designated both as SPA or SSSI or (2) it is designated as neither.

This argument was put forward by counsel for the claimants in the context that there was no legal requirement for all or any particular land included within an SPA under the Birds Directive to be notified as an SSSI in its own right; and secondly, that the two regimes did not have synonymous purposes. They argued that SSSIs were concerned with the protection of existing and established scientific interests whereas SPA'S could be established for broader purposes including the enhancement of the species or its habitat.

In upholding Lightman J.'s rejection of this challenge Wall L.J. (who gave the only reasoned judgment) seemed to base it on the narrow ground that there was sufficient evidence for English Nature to conclude that the site was of special scientific interest. He stated: -

"126 . . . what the appellants have not done is to explain how English Nature could ever reasonably take the view that an area of land was not of special scientific interest by reason of the birds it supports when in their opinion it is of European significance to those birds."

Wall L.J. later stated

"128. The rest, in my judgment, follows inexorably. English Nature reasonably formed the opinion that the area of land was of special interest by reason of its internationally important population of stone-curlew. This led to the duty to notify under section 28(1) of the 1981 Act. There is nothing in the process of consultation, or in English Nature's consideration of the objections, to which objection call be taken. The process is thus rational and procedurally fair, and at the end of it, having listened to and considered the objections, English Nature remained of the same opinion and confirmed the notification. At this level, the case, it seems to me, is very simple, and is a straightforward application of English Nature's statutory responsibilities to the facts of a particular case. "

On the other hand, while Wall L.J. accepted that the crucial issue must always be whether the area of land fulfilled the SSSI criteria, he did explicitly accept that English Nature could take the view that if land was sufficiently important to be an SPA, it must qualify as a SSSI and also that the need to underpin SPAs by SSSI status was a valid policy. So while designation as a SPA does not legally mean that a site must be designated as SSSI, this would seem to be the outcome in practice as long as the Government and English Nature maintain their present policies.