Lappel Bank – site protection nature first

The Lappel Bank case was a landmark ruling by the European Court of Justice about how economic and social considerations should be considered in development decisions affecting sites protected by the EU Birds Directive and Habitats Directive. In short, they are not relevant in classifying sites – that is a scientific issue only. If a site is considered for development one starts from that point and the question is whether such interests should override, including considering whether there are alternative solutions, and requiring compensatory habitats to be put in place.  

Richard Buxton Solicitors were instructed by the RSPB in a second phase of a dispute as to the reclamation of Lappel Bank, an important mudflat on the Medway estuary and classified as part of a Special Protection Area (SPA) under Birds Directive 79/409. The Secretary of State wished to exclude Lappel Bank from the SPA as it was the only realistic area in which to expand the Port of Sheerness, a significant local employer. He argued that Article 4 of the Directive, under which areas of special protection were classified, was to be considered in the same way as Article 3, which allowed account to be taken of economic requirements.

The CJEU agreed with the RSPB’s construction of the Directive. It held that Article 2 required Member States in taking measures to protect bird species to have regard to ecological, cultural and scientific requirements whilst taking into account economic and recreational factors. However, the criteria for defining the boundaries of SPAs under Article 4 were specifically ornithological considerations, unlike the general conservation measures in Article 3, so that the economic requirements specified in Article 2 did not apply. Nor could economic requirements be invoked on the ground that they constituted a general interest superior to the ecological objective of the Directive. Furthermore, there were no imperative reasons of public interest under Directive 92/43, the Habitats Directive (whose protective provisions had subsumed the those of the Birds Directive) which justified overriding the conservation objective of an SPA.

In effect, this case decided that when considering whether a site should be classified as an SPA (and the same applies to Special Areas of Conservation under the Habitats Directive) ornithological / scientific considerations are key. It is not relevant that the site may potentially be important economically. That possibility becomes relevant under the procedures for derogating from classified sites (as set out in Article 4(4) of the Habitats Directive), provided there are no alternative solutions and compensatory habitat is provided.

The case went with great speed from being considered by the High Court in May 1994 to the House of Lords the same November. As it happened, Lappel Bank itself was not saved: it was reclaimed and became a huge car park for the Port of Sheerness. That was because the House of Lords when making the reference to the CJEU (whose procedures take time) refused to grant an injunction prohibiting the work unless the RSPB have an undertaking in damages for losses suffered in case it was proved wrong, which no person or organisation could sensibly do. That danger has since been largely avoided by the provisions of the Aarhus Convention which require the ability to challenge decisions without prohibitive expense. But the case stands as a landmark ruling for habitat protection.

Richard Buxton (then working solo) and Richard Gordon QC of Brick Court Chambers represented the RSPB.