When environmental groups go to court, they face two handicaps: fear of the cost, and something in the judicial psyche that cannot conceive of nature being superior to economic interests. There have been few clearer examples of this than in the battles to save Lappel Bank on the Medway Estuary in Kent from reclamation. However, the final decision on the Bank, which will be given by the European Court of Justice (ECJ), may signal a turn in the tide.
If you are a wading bird, Lappel is the next best thing to heaven. It is a star among mudflats, hosting (for its size) more birds than the rest of the Medway. But it has the misfortune to be next to the expanding Port of Sheerness, which wants it for a huge car and cargo park.
War began in 1990 when the Royal Society for the Protection of Birds claimed a flaw in the grant of permission for reclamation. The planning authority Swale Borough Council had not consulted the RSPB when it had said it would. The High Court, however, decided not to intervene. Part of the reasoning was that fresh consultation might well not affect the decision; while to interfere would cause the port financial loss. In fact, soon afterwards, a planning inquiry rejected on environmental grounds a string of related proposals.
In late 1993, the government was finalising the boundaries of a Special Protection Area (SPA) for birds on the Medway, which it had to establish under the European Union Birds Directive. It decided to exclude that half of Lappel Bank which had still not been reclaimed. John Gummer, Secretary of State for the Environment, said the area was needed for port expansion on the economically depressed Isle of Sheppey. The RSPB claimed he could consider only whether Lappel Bank qualified from an ornithological point of view. He should set up the SPA; European law would allow development in due course, if necessary.
The RSPB asked for a judicial review. As reclamation had started again in June 1994, the courts moved with commendable speed and the case was in the House of Lords by November 1994. Unfortunately the courts had not been so sympathetic with their rulings. Four judges, two in the Divisional Court and two in the Court of Appeal, could not accept that European law might not allow economic interest into the decision making process. Lord Justice Hoffmann in the Court of Appeal agreed with the RSPB, saying the law was clear in its favour.
An immediate reference to the ECJ would normally be expected, especially when distinguished judges disagree so sharply about what European law means. But the Court of Appeal made the RSPB appeal to the House of Lords first.
It is not cheap going to the House of Lords. The nearer a final court of appeal, the more lawyers make sure no stones remain unturned. The Lords make it no easier by demanding an interest-free deposit of £18,000 as security for the other side's costs. Rightly, they also require meticulously organised documents; but to allow public libraries a record of the legal history in the making, they also want a tree-eating number of copies.
So costs increase - including the exposure to paying the other side's costs if you lose. Even though judicial review cases tend to be less expensive than other litigation, this hard-to-estimate exposure often frightens litigants. Clients need resolve and reassurance.
The Lords recognised the need to refer the Lappel Bank dispute to the ECJ, but even they showed no sympathy for a delay in reclamation work. The RSPB had sought an interim ruling requiring the Secretary of State to review the project and only allow it provided it satisfied certain criteria set out in European law. The Lords would not make such a declaration; an important consideration for them was the possibility of financial loss to the port, or to the government, without the RSPB undertaking to pay damages if it lost the case. Yet no charity can responsibly give such an undertaking. One day, the ECJ will probably be asked to rule whether it is lawful to require them to.
The Environment Secretary could himself choose to guard internationally important environments on their way to annihilation, pending the ECJ's decision. But that might cost money.
As the ECJ procedure is hard to accelerate - even with a request from the Lords for some priority, a decision will still take several months - Lappel Bank will probably be lost. However, the ECJ's decision will be crucial for conservation elsewhere in the UK and throughout Europe, where reluctant governments have been slow to establish SPA's, or have drawn them so as to allow for economic development.
If the ECJ supports the RSPB's stance, this will be a strong reminder to courts that the environment can rightly square up to economic interests. If courts became less instinctively protective, costs might fall and environmental groups might have more confidence in the law.
The Author, an independent solicitor in Cambridge, practises environmental law and is acting for the RSPB over Lappel Bank.