Case No: CO/3788/2001
Neutral Citation Number  EWHC 1599 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
London, WC2A 2LL
Friday 4th July 2003
THE HONOURABLE MR JUSTICE LIGHTMAN
- - - - - - - - - - - - - - - - - - - - -
(1) THE HON PATRICK FISHER
(2) TRUSTEES OF THE HON PV FISHER'S CHILDREN'S 1986 SETTLEMENT Claimants
- and -
ENGLISH NATURE Defendant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr David Holgate QC & Mr Daniel Kolinsky (instructed by Richard Buxton, Environmental and Public Law, 40 Clarendon Street, Cambridge CB3 1JX) for the Claimants
Mr John Howell QC & Ms Jane Collier (instructed by Browne Jacobson, 44 Castle Gate, Nottingham NG1 7BJ) for the Defendant
- - - - - - - - - - - - - - - - - - - - -
As Approved by the Court
Crown Copyright ©
Mr Justice Lightman:
1. The Claimants on this application challenge the decision ("the Decision") of the Defendant English Nature to confirm the notification of the Breckland Farmland, Norfolk and Suffolk Site of Special Scientific Interest ("the SSSI") (which includes land belonging to the Claimants) under section 28 ("Section 28") of the Wildlife and Countryside Act 1981 ("the 1981 Act"). On the same day that English Nature confirmed notification of the SSSI, English Nature confirmed the notification of the Bramshill Site of Special Scientific Interest which was the subject of a challenge dismissed by Forbes J in R (On the Application of Aggregate Industries Ltd) v. English Nature  Env. LR 3 ("Aggregate").
2. English Nature confirmed the notification of the SSSI under Section 28 on the 11th July 2001 and communicated the Decision confirming the notification by letter dated the 3rd August 2001. In confirming the notification the Decision confirmed the designation of over 13,335.7 hectares of intensively farmed arable land as an area of special scientific interest ("a SSSI"). The reason given for the notification and confirmation was stated as follows: "This site is notified for its internationally important population of stone-curlew." The notification specified five types of operation likely to damage the features of special interest ("OLDs") as requiring the prior consent of English Nature:
"Stand Type of operation
10. Killing, injuring, taking or removal of stone curlews, or their eggs and nests. Intentional or reckless disturbance of stone curlews, their eggs or chicks.*
12. Long term afforestation of farmland in excess of 5 hectares.
20. Extraction of minerals including hard rock, sand and gravel, topsoil and subsoil except for on farm use.
21. Construction of roads, or the laying, maintenance or removal of pipelines and cables, above or below ground, except for agricultural or forestry purposes.
23. Erection of permanent buildings or reservoirs, or the undertaking of engineering work, including drilling, except for agricultural or forestry purposes.
*Accidental disturbance through agricultural and game management, for example, is not regarded as intentional or reckless disturbance."
3. Council Directive 79/409/EEC ("the Birds Directive") on the conservation of wild birds as adapted by the Habitats Directive identifies species listed in Annexe 1 that require special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. The stone curlew is one of those species. The Birds Directive requires the Member States to classify "the most suitable territories in number and size ... for the conservation of" that species as special protection areas ("SPAs"). SPAs must under national law be provided with a legal protection regime which is capable in particular of ensuring both the survival and reproduction of the species: Commission v. French Republic (1999) European Court Reports 1-08531. The Secretary of State has the function of classifying SPAs in this country which he performs with the advice of English Nature. English Nature has proposed to the Secretary of State that he include the SSSI (together with other areas) within a SPA. This proposal is supported by the Claimants. The Secretary of State is minded to do so, but has decided to defer his decision until the outcome of this application is known. In the meantime the SSSI is merely included within a proposed SPA ("a pSPA").
4. The challenge made on this application is to the Decision so far as it confirms the notification. There is no challenge to the notification itself or to the OLDs. The grounds of the challenge are that English Nature: (1) acted irrationally and failed to take into account material, and only material, considerations; (2) exceeded its jurisdiction; and (3) in breach of section 6 of the Human Rights Act 1998 acted in a way that was incompatible with the Claimants' rights under Article 1 of the First Protocol to the European Convention on Human Rights ("Article 1"). The Claimants were granted permission to challenge the Decision on the ground that English Nature had failed to provide a scientifically justified basis for the area of land which it notified, but the Claimants did not pursue this ground at the hearing.
5. The grievance of the Claimants underlying this application is that a SPA imposes less constraints upon and consequently is less onerous to landowners than a SSSI and that the stone-curlew could be protected without any need for the notification and confirmation by leaving it to the Secretary of State to include the area in question within a SPA or by concluding voluntary agreements with the landowners. A question to be decided is whether under Section 28 it was open to English Nature to decide not to confirm the notification of the SSSI for this reason.
THE ORNITHOLOGICAL BACKGROUND
6. Stone-curlews are a migratory species nesting from March onwards in any year and migrating to southern Spain or North Africa from October. The birds nest from March each year in cultivated land which has plenty of bare ground and fairly short vegetation, as they prefer an open relatively unobstructed vista (so as to be aware of predators) and stony ground so that their eggs are camouflaged. The locations of the nests of the stone-curlew may vary from year to year and nesting attempts at different locations in one year are commonplace. Field work has found that stone curlew may travel up to 3 km from the nest site to forage. Stone-curlews are very sensitive to recreational disturbance and benefit from lack of recreational access on agricultural land. They are not usually affected by mechanised agricultural operations.
7. The stone-curlew is a species identified as being of European significance and as requiring special measures of conservation in the Birds Directive. It is a species that is protected under Part I of the 1981 Act by special penalties at all times. It is also a priority species under the UK Biodiversity Action Plan.
8. The stone-curlew is an extremely scarce bird species nationally. Numbers have fallen by 85% in the past 50 years and by more than 50% since 1960. The British population was estimated to be 215 pairs in 1998 and 234 pairs in 1999. It is one of the rarest breeding bird species in Great Britain.
9. The Joint Nature Conservation Committee ("the JNCC") established by English Nature, Scottish Natural Heritage and the Countryside Council for Wales under section 128(4) of the Environment Protection Act 1990 produced Guidelines ("the Guidelines") for the selection of sites as SSSIs which are in large part those published by the Nature Conservancy Council in 1989. The Guidelines indicate that localities which normally contain 1% or more of the total British breeding population of any native species are eligible for selection and that, in view of the mobility of some species, the guideline applies to sites used for other essential activities (such as feeding) as well as nesting sites. Two pairs of stone curlew represent approximately 1% of the Great Britain population of that species.
10. Around 95% of the United Kingdom population is found in two areas: the Norfolk/Suffolk Brecklands and Wessex. Most are in the Brecklands area. That area suits the stone curlew because of the big open fields, mimicking the birds' preferred habitat of open stony heaths, and the amount of bare land resulting from spring sown crops.
11. The criteria for the selection of SPAs for birds and those for SSSIs for the birds are similar. The selection guidelines for SPAs suggest that an area which is used regularly by 1% or more of the Great Britain population of a species listed in Annex 1 to Birds Directive is likely to qualify as an SPA. The Guidelines state in relation to the Birds Directive and SPAs:
"Any site that supports nationally important numbers of an Annex I species or a migratory bird species (at any season of the year) should be given consideration as to whether it should be proposed as an SPA. Some sites holding lower numbers of some Annex I species may also need consideration in view of the requirement to maintain distributions. Any such site should qualify as a potential SSSI. These SSSI selection guidelines have been written to embrace such special interest."
12. In January 2000 English Nature submitted proposals to the Secretary of State for a Breckland SPA. In 1998 the Breckland pSPA supported some 142 pairs of stone-curlew (66% of the Great Britain population) and in 1999 it supported 159 pairs (68%). A large proportion of the Breckland pSPA stone-curlew population nests on arable land. In 2000 arable land supported 61% of the first choice stone-curlew nests and 59% of the total fledged in that area was on arable land.
13. The SSSI falls within the larger Breckland pSPA. The SSSI itself supported some 102 pairs of stone-curlew in 1999 (44% of the Great Britain population). The SSSI would qualify on its own as a SPA under the relevant criteria.
14. English Nature (until January 2001 known as the Nature Conservancy Council for England) are a specialist nature conservation body. Section 131 of the Environment Protection Act 1990 provides that English Nature shall have "nature conservation functions" and defines "nature conservation" as "the conservation of flora, fauna or geological or physiographical features". Section 131 also provides that it is the duty of English Nature in discharging their conservation functions to take appropriate account of actual or possible ecological changes.
15. Section 28 vests English Nature with responsibilities in respect of SSSI. Section 28 (which appears in Part II of the 1981 Act headed "Nature Conservation") as amended by the Countryside and Rights of Way Act 2000 ("the 2000 Act"), reads as follows:
"28. Sites of special scientific interest.
(1) Where the Nature Conservancy Council are of the opinion that any area of land is of special interest by reason of any of its flora, fauna or geological or physiographical features, it shall be the duty of the Council to notify that fact -
(a) to every local planning authority in whose area the land is situated;
(b) to every owner and occupier of any of that land; and
(c) to the Secretary of State.
(3) A notification under subsection (1) shall specify the time (not being less than three months from the date of giving the notification) within which, and the manner in which, representations or objections with respect to it may be made; and the Council shall consider any representation or objection duly made.
(4) A notification under subsection (1)(b) shall also specify -
(a) the flora, fauna, or geological or physiographical features by reason of which the land is of special interest, and
(b) any operations appearing to the Council to be likely to damage that flora or fauna or those features,
and shall contain a statement of the Council's views about the management of the land (including any views the Council may have about the conservation and enhancement of that flora or fauna or those features).
(5) Where a notification under subsection (1) has been given, the Council may within the period of nine months beginning with the date on which the notification was served on the Secretary of State either -
(a) give notice to the persons mentioned in subsection (1) withdrawing the notification; or
(b) give notice to those persons confirming the notification (with or without modifications).
(6) A notification shall cease to have effect -
(a) on the giving of notice of its withdrawal under subsection (5)(a) to any of the persons mentioned in subsection (1); or
(b) if not withdrawn or confirmed by notice under subsection (5) within the period of nine months referred to there, at the end of that period."
(The provision in subsection (4) for a statement of the Council's views was added by the 2000 Act).
16. Section 28D of the 1981 Act ("Section 28D") provides that, if English Nature are of the opinion that all or any part of a SSSI is no longer of special interest by reason of any of the matters mentioned in section 28(1), they may decide to notify that fact, in which case the notification under section 28(1)(b) ceases to have effect.
17. Notification has a number of legal consequences. In particular: (1) English Nature may enter into an agreement with the owners, lessees and occupiers of any land within such an area for the purpose of conserving or restoring the matters by reason of which the area is of special interest (under section 15 of the Countryside Act 1968), imposing restrictions on the exercise of the rights of those persons and for the carrying out of work or the doing of such other things on the land as may be expedient. English Nature may acquire all or any part of an SSSI compulsorily if they are satisfied that they are unable to conclude an agreement as to the management of the land on reasonable terms or if any such agreement is breached in such a way that the land is not being managed satisfactorily; (2) English Nature may formulate a "management scheme" for conserving or restoring the matters by reason of which the area is of special interest, following the procedure set out in section 28J of the 1981 Act. If it appears to English Nature that any owner or occupier of land is not giving effect to a provision of a management scheme, that they are unable to conclude an agreement with him as to its management in accordance with the scheme and that, as a result any such matters are being inadequately conserved or restored, they may serve a "management notice" on him (under section 28K of the 1981 Act). Such a notice may require him to carry out such work on the land or do such other things with respect to it as are reasonably required to ensure that that the land is managed in accordance with the management scheme. Failure to comply with any requirement of a management notice without a reasonable excuse is a criminal offence and entitles English Nature to do what is required; (3) the owner or occupier of any land included in an SSSI may not carry out, or cause or permit to be carried out, on that land any operation specified in the notification itself as being likely to damage the matters by reason of which the area is of special interest, unless English Nature have been given notice of a proposal to carry it out (specifying its nature and the land on which it is proposed to be carried out) and the operation is carried out either in accordance with the terms of a relevant agreement with English Nature, a management scheme or a management notice or with English Nature's written consent. English Nature's decisions in relation to such consents may be the subject of appeal to the Secretary of State. A person who contravenes these requirements without a reasonable excuse is guilty of a criminal offence. Such an excuse may exist if the operation carried out is an emergency operation, if it was authorised by certain planning permissions or if it was permitted by certain public bodies in other circumstances; and (4) other public bodies are required to take reasonable steps in the exercise of their own functions, in so far as their exercise is likely to affect matters by reason of which the area is of special interest, to further the conservation and enhancement of those matters provided that such steps are consistent with the proper exercise of their own functions. Such public bodies are also required to follow a specific procedure designed to protect such matters which requires them to take into account English Nature's advice if they propose to carry out, or to give any consent for, any operations that are likely to damage such matters. It will be apparent that the consequences of notification go far beyond anything that can be achieved by voluntary agreement of affected landowners.
18. I should first say a few words on the construction of sections 28 and 28D. English Nature has a duty under section 28(1) to notify an area of land if it holds the opinion that the statutory criteria are satisfied. If (for example) English Nature is of the opinion that an area of land is of special interest because of the bird population which it supports, then it must notify. Section 28(1) affords scope for judgment: it affords no scope for discretion. The notification has immediate legal effect. English Nature must however thereafter within nine months decide whether to withdraw the notification or confirm it (with or without modifications) or it will lapse. Though section 28(5) in setting out the alternative courses available to English Nature uses the word "may", a term which ordinarily connotes a discretion, notwithstanding the obiter dictum in R v. Nature Conservancy Council ex parte London Brick Property Ltd  Env. LR 1 to the contrary, as it appears to me, if English Nature continues to be of the opinion that the statutory criteria are satisfied, the discretion can only lawfully be exercised one way, that is in favour of confirming the notification. They cannot lawfully withdraw the notification or allow it to lapse. For any other course than confirmation would bring into play once again the immediate duty of English Nature to make the notification, and the legislature cannot sensibly have intended this roundabout method of continuing the legal consequences of the continuing opinion of English Nature that the statutory criteria are satisfied.
19. The statutory scheme requires English Nature at two distinct and successive stages to exercise its expert judgment on three matters: (1) to determine whether the statutory criteria are satisfied; and if so (2) to specify the flora, fauna or geological or physiological features by reason of which it is of special interest; and (3) to specify any operations likely to damage the flora, fauna or those features. The first stage is the notification stage and the second is the confirmation stage when the decisions at the notification stage require reconsideration in the light of objections, representations and further information received in the interim. English Nature in determining whether the area is of special interest for any of the four possible statutory reasons will have regard to the fact that the judgment is called for in the context both of their nature conservation function and of legislation directed at nature conservation and designed to place constraints on land owners required in the interests of such conservation. There is no requirement that the land is of national importance: cf section 29(2)(b) of the 1981 Act since repealed by the 2000 Act.
20. In view of the arguments before me I must underline one consequence of the fact that the exercise required of English Nature is exclusively one of judgment. If English Nature are of the opinion that the statutory criteria are satisfied, they have no discretion to decline to notify or confirm (and accordingly displace section 28 and the statutory scheme of which it forms part) by reason of a preference for application of some other statutory or non-statutory scheme or by reason of any objection to or dissatisfaction with the legal consequences of notification or confirmation. In particular English Nature cannot refuse to confirm (as submitted by the Claimants) because they consider that the population of stone-curlews would be protected more effectively and in a way occasioning less interference with the peaceable enjoyment of their possessions by landowners by voluntary agreements with landowners or by the classification by the Secretary of State of the area of land in question as part of a SPA.
21. Further it is clear (notwithstanding submissions by the Claimants to the contrary effect) that the duty of English Nature to exercise their own judgment and notify and confirm in accordance with their expert judgment cannot and should not be qualified by their own past practice or by provisions in the Guidelines. The Guidelines may inform English Nature in reaching their judgment, but not constrain. This fully accords with the judgment of Forbes J in Aggregate, who made clear that, once the current Members of the Council of English Nature came to the conclusion that a site did satisfy the statutory criteria, they were duty bound to act in accordance with their own opinion, whether or not this involved a departure from a previous decision or a change in policy.
22. As I have already said, it is to the existence of the legal consequences of the notification and confirmation that the Claimants take objection as unfair and unnecessary interferences with their rights of ownership and which (they contend) are avoidable by classification as a SPA instead of confirmation as a SSSI as the statutory vehicle for bird protection or by recourse to non-statutory means, namely agreements with the landowners. In my view, for the reasons which I have given, these grounds of objection are not legally tenable. English Nature are statutorily obliged to apply the criteria laid down in section 28. Whether the area satisfies the criteria of a SSSI cannot be affected, still less determined, by the existence (let alone the possible future existence) of what may appear more attractive alternative courses of action (e.g. classification as an SPA) nor can their existence lawfully deflect English Nature, if satisfied that the criteria are satisfied, from the course of notification and confirmation.
CHALLENGES TO DECISION
23. It is clear from the Minutes of its meetings and beyond dispute that the reason for the resolutions of English Nature to notify and to confirm the notification was the internationally important population of stone-curlew: on both occasions English Nature stated this was the reason for their resolution. It is accordingly incumbent on the Claimants to establish grounds of challenge to what on the face of it is a valid decision to confirm for this reason.
24. Before I consider in turn each of the grounds for which the Claimants were granted permission to apply for judicial review, I must consider two matters on which the Claimants addressed me at the hearing. The first was that the Members of the Council of English Nature who made the Decision were unaware of the terms of the Guidelines or failed to have in mind those provisions. No such allegation was made in the application to the court and no evidence was adduced in support of it. Nonetheless the Claimants in the course of the hearing made submissions to the effect that the failure of English Nature to have regard to provisions of the Guidelines vitiated the Decision. In my judgment it is not open to the Claimants to advance such a case. If the Claimants had included such a case in their application to the court, English Nature would have been placed on notice of this fact when they prepared their evidence. They could have put forward evidence by the Members on this issue. There was no occasion to do so as this was not part of the case which they had to address. I should add that I am fully satisfied that, in the absence of evidence to the contrary, I should assume that in accordance with their duty the Members familiarised themselves with the Guidelines.
25. The second is that on the day prior to this hearing the Claimants gave notice of intention to apply for permission to rely on an additional ground, namely that in deciding to confirm the notification English Nature took no account of serious concerns about the SSSI expressed by MAFF. The Claimants explained that they had only just received from English Nature a letter disclosing the existence of such concerns on the part of MAFF and accordingly the possibility of challenge on this ground. English Nature opposed the application. They told me that the anxieties expressed at one stage by MAFF had been allayed at a meeting with English Nature prior to the Decision and that they had so informed the Claimants by letter prior to the hearing. English Nature contended that there was no evidence to the contrary; that there was nothing in the point; that there was no relevant correspondence with MAFF on this issue to be disclosed; and that it was far too late to raise the matter at the hearing. On the material before me no reasonable grounds exist for the belief that there is any substance in this ground of complaint. (I may add that the Claimants should surely have pursued inquiries with MAFF prior to the hearing if they wished to challenge or question English Nature's statement in its letter regarding its meeting with MAFF). The issue could not be explored further without an adjournment; I do not think that the adjournment would serve any useful purpose; and in the circumstances justice does not require or justify allowing the Claimants to pursue this objection on this application.
26. The challenge to the Decision on grounds of irrationality rests on a number of separate grounds. The first is that English Nature departed from previous practice between 1994 and 2000 of not granting SSSI status in case of extensive areas of conventional plantation or to habitats for migratory birds or birds who nested in areas only sporadically. But English Nature decided in February 2000 not to be bound in future by this practice and rightly so, for their duty required them to accept no such constraints on the exercise of the judgment committed to them. This decision in February 2000 has never been challenged in judicial review proceedings, no doubt because any such challenge was doomed to failure. I cannot see how the earlier (later abandoned) practice is of any assistance.
27. The second is that English Nature departed from the Guidelines. I have already held that English Nature, far from being legally bound by the Guidelines, was legally bound to depart from the Guidelines if they went beyond informing, and placed any constraint upon, the exercise of their judgment. But, going beyond this, I can find no departure from the Guidelines. The Guidelines advised care and caution before deciding to notify or confirm largely artificial habitats for the reason of the presence of rare birds and that croplands should not normally be selected, but in no way precluded the Decision, and the evidence reveals that all due care was exercised (and in any event should be presumed to have been exercised) by English Nature in reaching the Decision.
28. The third (which is the most serious allegation) is that English Nature decided to confirm the notification, not on its merits, but to give effect to the wishes of the Secretary of State and to underpin the pSPA in this way and to improve the prospects that the Secretary of State would classify the SPA.
29. This challenge requires consideration of two matters: (1) the relationship of designations or classifications as SPAs and SSSIs; and (2) the approach adopted by English Nature to designating the SSSI and the statements made by, on behalf of and to English Nature up to and including the meeting at which the Decision was made.
(1) The Relationship of designations as SPAs and SSSI
This application is not the occasion for any detailed examination of or exegesis on the relevant legislation (and in particular European legislation) relating to SPAs. In this context it is important to bear in mind that there is as yet no SPA and (in particular in the absence of an SSSI) there may never be, and the performance of the duty of English Nature under Section 28 cannot lawfully be deferred to await the exercise of jurisdiction by the Secretary of State to classify an SPA. It is sufficient for the purpose of this application to have in mind two matters. The first matter is that there are close links between the two statutory schemes. In this context it is relevant to note that: (1) Regulation 3 of the Conservation (Natural Habitats) Regulations 1994 provides that English Nature shall exercise their powers under section 28 so as to secure compliance with the Habitats Directive; (2) the Guidelines, after referring to the international obligation to nature conservation in terms of site protection under (amongst other treaties) the Birds Directive and the Habitats Directive (transposed into English law by the Conservation (Natural Habitats) Regulations 1994), go on in paragraph 3.2 to say:
"It seems axiomatic, that if an area, feature or species is of international importance, it must be of special interest in its total national occurrence. In these cases it is necessary to select all sites above a critical standard, and not to rely on choosing only exemplary areas in order to meet the international conservation obligation. This can apply to habitats which are extensive (e.g. blanket bog) and to species which are numerous ... as well as to habitats and species which are localised and rare."
and (3) in Aggregate Forbes J held that English Nature were to take into account "the site's function as part of a larger area of European importance".
30. The second matter is the Government's views on the relationship between the two schemes. By letter dated the 19th June 2003, the Treasury Solicitor confirmed to this court: (1) that "the Government takes the view that the provisions of the Birds Directive with respect to SPAs, as adapted by the Habitats Directive, are transposed in part by the provisions of the 1981 Act relating to SSSIs, as supplemented and adapted by the provisions of the Habitats Regulations 1994;" (2) that "the Government's view on the interrelationship of sites of international importance (such as SPAs) and SSSIs is as recorded by Forbes J in paragraph 25 of his judgment in Aggregate"; and (3) that the Government's view on the question whether an area should not be classified as an SPA unless it has also been notified as an SSSI was reflected in the same paragraph.
"The Government would expect, as a matter of logic, a site appropriate for SPA designation to fulfil the criteria for SSSI notification. If a site being considered for SPA designation were to be regarded as not fulfilling the SSSI selection criteria, the Government would wish to reconsider the evidence supporting SPA candidature."
These clearly have been the thrust of the Government's views for some time and were correctly understood as such by English Nature when the Decision was made.
(2) English Nature's Approach to Designating the SSSI
31. I have already traced the history of the current approach adopted by English Nature to notifying and confirming SSSIs. At no time between 1994 and 2000 did English Nature (or its statutory predecessors) regard the present site or indeed any transitory habitats as satisfying the requirements for a SSSI; and the Guidelines stated that care should be exercised if the presence of rare birds is the only reason for considering a largely artificial habitat and that croplands should not normally be selected. In a word, caution was advocated in these cases. In February 2000 however English Nature's approach to determining the threshold for what counts as a "site of special scientific interest" changed fundamentally in relation to artificial habitats with transitory populations of bird. The decision of English Nature of that date to this effect has never been judicially challenged and for this reason (as well as its accord with Section 28) plainly is valid and correct. Nonetheless the Claimants contend that the reason for this fundamental change and for the Decision was that English Nature reluctantly succumbed to pressure from the DETR (as it then was) to notify and confirm the SSSI to underpin the pSPA and that English Nature notified and confirmed in order to achieve the goal of the designation by the DETR of the Breckland SPA, a pre-condition for which was that English Nature notify and confirm the SSSI.
32. In support of this contention the Claimants have referred me to letters between English Nature and the DETR and reports and papers to English Nature reflecting the wish of English Nature at one time that there should be a SPA and not an SSSI; the insistence by the DETR that there should be an SSSI before the DETR classified the SPA and that all SPAs are underpinned by SSSI notifications and confirmations; discussions between English Nature and the DETR as to the timing of the SSSI and regard by English Nature as to the wishes of the DETR in this regard; and the expression of view by English Nature that it would not recommend for inclusion in the SPA land which it did not confirm as SSSI.
33. Whether the Claimants' contention is correct in respect of the Decision must be determined by reference to what was said and done at the critical meeting at which the Decision was made. The events preceding the meeting put the court on its guard to scrutinise with care whether in their deliberations English Nature asked themselves and decided the right question, namely whether the statutory criteria were satisfied: they do not determine the issue. I approach the issue mindful of the guidance provided by Simplex v. Secretary of State  3 PLR 25 that a decision should in general be quashed if by way of error a relevant consideration is not taken into account or an irrelevant consideration is taken into account unless the decision-maker was bound on the facts to have reached the same conclusion if the error had not occurred.
34. At the meeting of the Council of English Nature held to consider confirmation of the notification:
i) a representative of the Claimants, Mr Falcon, addressed the Council. He stated that it was not legally necessary to 'designate' and that "the existence of itself of an SPA does not in itself obligate the United Kingdom Government to create an SSSI";
ii) the Council of English Nature then received the legal advice given to it by the solicitor it employed for that purpose, Mr Richard Barlow, who stated that:
"Council members must be satisfied that the land which is being notified is of special interest. Much work has been done to devise this package in a way which properly covers all the issues but also can protect that which is considered to be special. And so the decision for you is to apply the provisions of the Act to this land";
iii) in the course of the Council's discussions, however, one member of the Council (Mr Nicholas Woolley) said that he thought that the fact that the land ought to be part of an SPA "in itself in the light of the English legislation and in the light of quite clear specific government direction to us..justifies and requires this land to be designated as an SSSI";
iv) thereupon another member of the Council, Mr Stephen Tromans (a well known barrister who specialises in environmental law), stated his view that, while
"the fact that land may be an SPA is clearly relevant to our decision, I don't think..[we can] say that...automatically it must pass the SSSI test, I think that we have to make up our own minds on that on the information available because that's what the legislation requires us to do".
v) in response to a question by another member of the Council about the relationship between SPAs and SSSIs, the Chairman stated that Mr Tromans had answered it, but the Chairman nonetheless asked Mr Tromans to say it again as it was an important point;
vi) Mr Tromans then stated that:
"It seems to me that whatever Government policy may be as to the linkage between SPAs and SSSIs, the question for us this morning as Richard Barlow said is whether the land meets the criteria of the legislation that we are dealing with. We can't regard ourselves as being bound by Government policy to say that something is a SSSI if we don't think in our heart of hearts that it really is, I think that is the key to it.";
vii) the Chairman stated that he thought that was "very clear" and invited Mr Woolley to speak;
viii) Mr Woolley then sought to explain that his view was that:
"if we have an area of land whether it be large or small, if it is of sufficient international importance that it should be declared an SPA. Surely to goodness if its of such international importance it is very hard to believe that it isn't of sufficient national interest. If the science is there to back up the international interest it surely is there in abundance to back up the national interest."
ix) the minutes of the meeting record:
(a) "Council discussed the issues noting that a decision was required upon the existence of special interest at the site and concluded that such special interest is in place on the Breckland Farmland site;
(b) "the reason for the notification (which the Council of English Nature was invited to, and did, confirm) was that "this site is notified for its internationally important population of stone curlew ...."
35. The Claimants challenge the Decision on the ground that what they describe as the earlier "mistaken approach" "was not cured by the comments of Mr Tromans" as (i) "the flaws in the decision making process were by that date so entrenched that they could not have been cured without a fundamental re-evaluation of whether or not it was appropriate to designate"; (ii) there was "confusion amongst members of the Council"; (iii) Mr Woolley treated notification as "a foregone conclusion" given that the area was part of a pSPA; and (iv) even Mr Tromans thought that the fact that the land was within an SPA might be relevant to the decision. I totally reject this challenge.
36. It is manifest from the transcript and minutes of the meeting that the members of the Council were advised and recognised that they had to determine whether the land notified was of special interest as stated in Section 28. It was not simply Mr Tromans who gave that advice; he was endorsing the advice provided previously by the Council's own solicitor, given after representations made by a representative of some of the landowners affected about the relationship between SPAs and SSSIs. The Chairman found Mr Tromans' advice very clear and Mr Woolley did not suggest that in the light of it he remained of the view that there was any legal requirement as such to notify if the land was in a SPA. There is no reason to doubt (and the Claimants have not alleged that the minutes are untruthful when they state) that the Council noted that "a decision was required upon the existence of special interest at the site" and that they concluded that there was such a special interest. The Council accordingly addressed themselves to, and answered, the correct statutory question and confirmed the reason why the area of land had special interest.
37. In my judgment it is wrong to suggest that it is legally irrelevant or impermissible for English Nature to take into account, in deciding whether an area is of special interest by reason of the bird population it may support, the fact it considers that that area is (or forms a part) of one of the most suitable territories in number and size for the conservation of birds who are recognised as being of special significance at a European level as well as in national legislation. Indeed (as I have already said) Forbes J held in Aggregate that English Nature were entitled to take into account "the site's function as part of a larger area of European importance". I refer also to the matters and the passage in the Guidelines set out in paragraphs 11 and 12 of this judgment.
38. I see no reason to disagree with the Government's views as to the relationship between SPAs and SSSIs in terms of the transposition of the Birds Directive but whether or not those views are correct is immaterial. What is clear is that English Nature applied and determined the issue of confirmation by reference to the statutory criteria and for the reason which they gave, namely to protect stone-curlews and for no such collateral reason as the Claimants allege; and that, so far as they regarded it as a relevant consideration in the exercise of their judgment whether the statutory criteria were satisfied that the area of land in question was appropriate to be classified as a SPA and that they had made a recommendation to this effect to the Secretary of State, that was a view they were fully entitled to take. But even if I am wrong and they were not entitled to treat as a relevant consideration the fact that the site was in their view appropriate to be classified as a SPA, there can be no doubt that, even if English Nature had ignored this consideration, they would have reached (and indeed could only have reached) the same conclusion namely that the statutory criteria under Section 28 were satisfied.
39. The Claimants contend that it was beyond the range of reasonable meanings open to English Nature of the statutory formula "a site of special interest by reason of its fauna" to designate the entirety of 13,335.70 hectares as a SSSI where the reason for designation was the preservation and protection of the habitat for nesting and breeding of single pairs of stone-curlews, which only occupied the habitat from March to October and changed their sites from year to year with the rotation of crops. The Claimants sought reinforcement of this argument by praying in aid the fact that the Decision contradicted consistent practice to the contrary between 1994 and 2000 and departed from provisions in the Guidelines. As I have already held, there were in fact no such departures from the Guidelines, but whether or not this is so, as a matter of law none of these considerations could preclude a determination by English Nature that the statutory criteria were satisfied: rather these are at most relevant considerations for English Nature to take into account in the exercise of the jurisdiction committed to them of deciding whether the statutory criteria were satisfied and the area in respect of which it was satisfied. It at all times remained open to English Nature reasonably and sensibly to reach the conclusion which they did that the whole area was of special interest because of the support which it provided for such a significant proportion of such an important and rare bird species recognised as being of European significance: consider Aggregate at paragraph 132. English Nature had to decide whether to confirm and (if so) how extensive the SSSI area had to be if it was to provide the requisite protection. The Members visited the area between the dates of notification and confirmation and applied their expertise and judgment. There is no basis on which this court can or should substitute its judgment for that of English Nature As Forbes J said in Aggregate at para 106(3) "English Nature is far better placed and qualified than a court to make the requisite assessments and value judgments". In this context it is to be noted (as I said earlier) that the Claimants, though granted permission to challenge the Decision on the ground that English Nature had failed to provide a scientifically justified basis for the land which it notified, did not pursue this ground and there is accordingly no vulnerability or exposure to criticism of the Decision on this ground.
40. Article 1 protects a person's right to the peaceful enjoyment of his possessions but it goes on to provide that this protection does not impair "in any way the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest". Section 6 of the Human Rights Act 1998 renders it unlawful for English Nature to act in a way which is incompatible with Article 1. The Claimants accept that protection of stone-curlews is a legitimate public interest justifying the imposition of restrictions on the use of their property. But they contend that English Nature's decision to confirm the notification was incompatible with their Convention rights because it occasioned a disproportionate interference with the peaceful enjoyment of their possessions. In respect of that submission I fully accept and adopt the answer given by Mr Howell in his submissions.
41. There are four possible matters on which in theory an Article 1 complaint might focus. These are: (i) the confirmation of EN's opinion, (ii) the confirmation of the specified OLDs, (iii) the effect of being within an SSSI under other statutory regimes, and (iv) being within an SSSI rather than a SPA.
42. (i) An allegation that the confirmation of English Nature's notified opinion that the area is of special interest was disproportionate (assuming that opinion to be genuinely and not unreasonably held) is plainly unmaintainable because: (1) English Nature were duty-bound to confirm the notification if they held that opinion and accordingly their decision to do so could not as such be incompatible with Convention rights: only the statutory provisions could be incompatible, and in this case the Claimants have disavowed any such challenge to the legislation; and (2) in any event, the Claimants do not, and cannot, contend that the mere notification or confirmation of English Nature's opinion would in itself be incompatible with their Convention rights. English Nature's opinion of itself does not interfere with the peaceful enjoyment of their possessions in any respect. It simply represents English Nature's opinion.
43. (ii) A challenge to the confirmation of the specification of OLDs and that the specification of these restrictions imposed disproportionate restrictions on ownership rights has now been disavowed. In any event, it would be unsustainable because: (1) it is not in dispute that the operations specified are likely to damage the stone-curlew. All that their specification requires is that consent is obtained for them before they are carried out on pain of committing a criminal offence. If and when the Claimants ever propose to carry out such an operation, a fair balance can be struck in determining whether consent should be granted between the acknowledged public interest in protecting the stone-curlew and the Claimants' interests in carrying out any such operation. Such a regime is not disproportionate nor is it alleged to be. (Moreover in this case multiple consents are not required as suggested by the Claimants, even if more than one set of controls are applicable to any particular operation); and (2) furthermore none of the operations specified is likely in any event to have any significant impact on the agricultural use of the Claimants' land (nor do the Claimants contend otherwise). Any complaint about control of those operations is accordingly manifestly unfounded: Oerlemans v. NL (1989) 62 DR 200 at 204-6.
44. (iii) A complaint relating to the effect of being within an SSSI under other statutory regimes e.g. the General Development Order ("the GDO") and to the effect that restrictions imposed under those regimes in respect of land within SSSIs are more than are strictly required is likewise misconceived. For it is irrelevant to English Nature's decision to confirm the notification. At best (from the Claimants' point of view) the Claimants might show that the effect of being within an SSSI under other statutory regimes is unlawful as being disproportionate. Their complaint in such a case would be that (e.g.) the GDO was unlawful as being incompatible with their Convention rights. But it does not mean that English Nature's decision that this area is of special interest and that their confirmation of the notification are themselves incompatible with the Claimants' rights under Article 1.
45. (iv) Finally, a complaint that the Claimants' property should lie within, not an SSSI, but within a SPA is again irrelevant. The only decision for English Nature relates to whether or not to notify, and to confirm the notification of, the area of land as being of special interest. Given that English Nature are duty bound to notify and maintain the notification if in their judgment the statutory criteria are satisfied, any complaint on the part of the Claimants must be that the statutory scheme (not the Decision) is incompatible with their Convention rights if it permits or requires such notification when (a) English Nature think that the land ought to be within a SPA or (b) when it is. Such a case of statutory incompatibility the Claimants disavow.
46. I should add that if the legal merits of any complaint did need to be examined in any more detail, under Article 1 a fair balance must be struck between the general interest and the interest of any property owner. But in considering questions of proportionality under Article 1 the European Court of Human Rights has made it plain that states enjoy a wide 'margin of appreciation' in this area relating to the control of the use of land in the public interest for environmental reasons, and that the controls prescribed or interferences involved must be without any reasonable foundation if the court is to regard them as disproportionate: Fredin v Sweden  13 EHRR 784. It is well established that a reasonable relationship of proportionality under Article 1 does not import a test of strict necessity (as Mr Holgate has argued). The fact that there may be other even better methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under Article 1: see James v the UK  8 EHRR 123; Tre Traktorer Aktiebolag v Sweden  13 EHRR 309. That 'margin of appreciation' is properly reflected domestically in the respect that is due: (a) to the choices that the legislature is entitled to make in this area (for which it is democratically accountable): and (b) to any judgement made by English Nature as a specialist regulator, expert in the matters of nature conservation: cf Holder v the Law Society  EWCA Civ 39, 1 WLR 1059. As Forbes J stated in Aggregate, the legislation and Decision fall well within the areas of respect to be accorded to the legislature and English Nature. Most particularly the provisions for notification and confirmation are essential parts of a regime: (a) designed by the legislature to ensure that informed decisions are made before potentially damaging (and indeed irreversible) actions are taken; and (b) to be brought into play in appropriate situations by English Nature; but (c) leaving the landowners free at all times to apply to be absolved from the bonds imposed on them. It was a choice which the legislature was entitled to take in this area and it was likewise open to English Nature to make the Decision.
47. I accordingly reject the Claimants' challenge under Article 1.
48. For the reasons which I have set out in this judgment I accordingly reject this challenge to the Decision and dismiss this application. I record with gratitude the immense assistance which I received from Counsel throughout this case.
- - - - - - - - - - - - - - -
MR JUSTICE LIGHTMAN: For the reasons set out in the judgment which I have handed down, I dismiss this application.
MISS WINDLE: My Lord, there is just the matter of our costs. It would also assist English Nature very much if you could indicate that this case was appropriate for leading counsel.
MR JUSTICE LIGHTMAN: Yes, it was appropriate for leading counsel.
MISS WINDLE: My Lord, I am grateful.
MR KOLINSKY: My Lord, I do not resist the application for costs. The only submission that I would make is that it is a matter for detailed assessment rather than this court.
MR JUSTICE LIGHTMAN: I will dismiss the application with costs and I will say the case was suitable for leading counsel. Plainly it was. I must say from all parties I have received immense assistance which I needed. Thank you very much.
MR KOLINSKY: My Lord, there is one other matter which is an application for permission to appeal. My Lord, I have hopefully, in order to assist your Lordship and take this matter as shortly as possible, I have prepared what I have to say in support of my application a speaking note. If I may hand that up now.
MR JUSTICE LIGHTMAN: Yes.
MR KOLINSKY: My Lord, I shall go through it with limited elaboration. My Lord, I do apply for permission to appeal. As my Lord will see in paragraph 9 I place it in respect of both limbs, both in terms of a real prospect of success and also in terms of public importance.
The starting point for the application, my Lord, is your Lordship's approach to the decision under challenge. Your Lordship says that there is no challenge to the notification itself, that is paragraph 3 of the judgment. The claimant intends to argue in the Court of Appeal that this analysis is not the correct. The claimant did challenge the notification by making objections to it through the relevant statutory process which, allowed for, on English Nature's own analysis, all matters, that is scientific objections, points of law and other issues -- that is a quote from page 100 -- to be taken into account in deciding whether to confirm the notification.
My Lord, we say that this is important because it affects what is under challenge. On your Lordship's analysis it is simply the decision to confer. By contrast on the claimant's analysis it is the whole decision-making process from notification to the decision to confer. We say that how the decision is defined affects the application of the Simplex approach to evaluating what influence any immaterial considerations had in the decision-making process. The claimants submit that it is at least arguable that the Court of Appeal will take a different approach to your Lordship on this issue, which we say defines the starting point for much of your Lordship's reasoning.
My Lord, the second point I make in support of my application for permission to appeal focuses on your Lordship's approach to the construction of section 28. Your Lordship's analysis is in essence that once English Nature has formed its judgment, it is under a duty to notify and thus the consequences of the notification are irrelevant: see in particular paragraphs 18, 19 and 22 of the judgment. The claimant will submit to the Court of Appeal that the fact that English Nature are under a duty, once they have formed a relevant judgment, syndicates the question as to what criteria are material in the process of forming the necessary judgment. The claimant submits that it is at least arguable --
MR JUSTICE LIGHTMAN: I have read the whole of your skeleton. It is embarrassing for counsel and difficult to make his submissions to the judge that he got it wrong --
MR KOLINSKY: My Lord, I am grateful.
MR JUSTICE LIGHTMAN: -- I appreciate that. Though helpfully and sympathetically presented, I think the right course is for you to make this application to the Court of Appeal. I have read through the whole of this. I do not think an appeal has a prospect of success, but you enjoy yourself and go off to the Court of Appeal and prove me wrong.
MR KOLINSKY: I am not sure I will get any further than this court.
MR JUSTICE LIGHTMAN: I have read it. It is helpfully written and sympathetically written. I think the best course is for you to present your application to the Court of Appeal. Thank you very much.