IN THE SUPREME COURT OF JUDICATURE FC3 94/6349/D
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, DIVISIONAL COURT
(LORD JUSTICE ROSE, MRS JUSTICE SMITH)
Royal Courts of Justice
Thursday, 18 August 1994
B e f o r e:
LORD JUSTICE STEYN
LORD JUSTICE HIRST
LORD JUSTICE HOFFMANN
In the matter of an application for judicial review
R E G I N A
- v -
THE SECRETARY OF STATE FOR ENVIRONMENT
(Ex parte THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS)
(Computer Aided Transcript of the Palantype Notes of
John Larking Verbatim Reporters, Chancery House, Chancery Lane
London WC2 Tel: 071 404 7464
Official Shorthand Writers to the Court)
Mr. R GORDON QC (Instructed by Messrs. Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant
MR. R. FOWLER QC and MR. A LINDSAY (Instructed by the Treasury Solicitor, Victoria) appeared on behalf of the Respondent
MR. C LEWIS appeared on behalf of the the Port of Sheerness
J U D G M E N T
(As approved by the Court)
Thursday, 18 August 1994
J U D G M E N T
LORD JUSTICE HIRST: This is an appeal, pursuant to leave given by this Court yesterday, by the Royal Society for the Protection of Birds ("RSPB") against the refusal by the Divisional Court, (Rose LJ and Smith J) of their application for judicial review against the Secretary of State for the Environment ("the Secretary of State").
The decision of the Secretary of State which is in issue is the exclusion from the classification as a Special Protection Area ("SPA") under the Birds Directive (EEC Directive 79/409/EEC) of a small area of land called Lappel Bank. The designated SPA comprises an area of 4681 hectares in the Medway Estuary and Marshes, and is a very valuable ornithological habitat.
Lappel Bank, which is an area of partly reclaimed land covering 22 hectares, immediately adjoins the port of Sheerness to the south, falls geographically within the bounds of the SPA (though comprising less than one per cent of its total area) and shares several of the important ornithological qualities of the area as a whole. The preamble to the directive provides so far as relevant as follows:
"Whereas a large number of species of wild birds naturally occurring in the European territory of the Member States are declining in number, very rapidly in some cases; where as this decline represents a serious threat to the conservation of the natural environment, particularly because of the biological balances threatened thereby;
Whereas the conservation of the species of wild birds naturally occurring in the European territory of the Member States is necessary to attain, within the operation of the common market, of the community's objectives regarding the improvement and living conditions, a harmonious development of economic activities throughout the Community and a continuous and balanced expansion, but the necessary specific powers to act have not been provided for in the Treaty;
Whereas conservation is aimed at the long-term protection and management of natural resources as an integral part of the heritage of the people's of Europe; whereas it makes it possible to control natural resources and governs their use on the basis of the measures necessary for the maintenance and adjustment of the natural balance between species so far as is reasonably possible..."
Article 1 provides as follows:
"1. The Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.
2. It shall apply to birds, their eggs, nests and habitats."
Article 2, which is the first of the critical Articles, is in the following terms:
"Members States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level."
Article 3 provides:
"1. In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re- establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.
2. The preservation, maintenance and re- establishments of biotopes and habitats shall include primarily the following measures:
(a) creation of protected areas;
(b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protective zones;
(c) re-establishment of destroyed biotopes;
(d) creation of biotopes."
Article 4, which is the second of the critical Articles in this case, provides as follows:
"1 . The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival; and reproduction in their area of distribution.
In this connection, account shall be taken of:
(a) species in danger of extinction;
(b) species vulnerable to specific changes in their habitat;
(c) species considered rare because of small populations or restricted local distribution;
(d) species requiring particular attention for reasons for the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.
Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.
2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
3. Members States shall send the Commission all relevant information so that it may take appropriate initiatives ..."
It then goes on to describe how that should be done.
"4. In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, insofar as these would be significant having regard to the objectives of this Article. Outside these protection areas, Members States shall also strive to avoid pollution or deterioration of habitats."
Article 5 requires Member States to take requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting, amongst other things, deliberate killing or capture and deliberate destruction or damage to their nests and eggs.
Article 6 requires Member States to prohibit in the case of all Article 1 bird species the sale, transport for sale, keeping for sale, or offering for sale, of live or dead birds.
Article 7 refers to species listed in Annex 2 which may be hunted under national legislation and requires Member States to ensure that the hunting of these species does not jeopardise conservation efforts in their distribution area.
Article 8 prohibits in respect of hunting, capture or killing the use of all means or methods for the large scale or non-selective capture or killing of birds.
Article 9 provides as follows:
"1. Member States may derogate from the provisions of Article S, 6, 7 and 8, where there is no other satisfactory solution, for the following reasons:
(a)- in the interests of public health and safety,
- in the interests of air safety,
- to prevent serious damage to crops, livestock, forest, fisheries and water,
- for the protection of flora and fauna;
(b) for the purposes of research and teaching, of re-population, or re-introduction and for the breeding necessary for these purposes;
(c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of, certain birds in small numbers."
The machinery for derogation is then prescribed.
It is common ground that the Medway Estuary and Marshes as a whole fall within Article 4.2 of the Directive, both as a wetland of international importance and in supporting important wintering populations of migratory wildfowl, and also within Article 4.1 in respect of two species.
As a result, after extensive consultation, the Secretary of State classified them as an SPA. However, during the course of the consultation process, he received representations from several quarters, including the Port of Sheerness Ltd (who were represented both before the Divisional Court and before us) that Lappel Bank should be excluded from the SPA on economic grounds, having regard to its great importance as land earmarked for expansion of the adjoining port, for which planning permission has been granted.
In reliance on Article 2, the Secretary of State carried out a balancing exercise, and while recognising the great strength of the ornithological considerations, concluded that they were outweighed by the even more powerful economic considerations, and decided to exclude Lappel Bank from the SPA.
It is not disputed by the RSPB that this balancing exercise was properly carried out by the Secretary of State, provided that it is in principle permissible to take account of economic considerations at the classification stage.
However, the RSPB contend that, on the proper construction of the Directive, and particularly in the light of recent decisions of the European Court of Justice, this is not permissible, that at the classification stage only ornithological considerations are pertinent and that economic considerations must be disregarded, notwithstanding Article 2.
The Secretary of State, on the other hand, contends that on a proper interpretation of the Directive, and of the authorities, he was fully entitled at the classification stage to take account of the economic considerations under Article 2 and to carry out the balancing exercise in fact undertaken. This view was upheld by the Divisional Court.
The case thus turns on a careful analysis of the Directive, both as it stands and in the light of these authorities, but before citing those cases, and deploying and evaluating the rival arguments, I propose to summarise the basic facts which do not give rise to controversy, and briefly to describe the designation process carried out in this case.
The ornithological considerations may be summarised as follows. The Medway Estuary and Marshes are wetlands of international importance for a range and substantial number of wildfowl and water species, which use them both as a breeding ground and as a wintering area, and also as a staging post during spring and autumn migrations. They also support nationally important breeding populations of avocets and little terns, both of which species are considered vulnerable and are listed in Annex I to the Directive. The area as a whole thus falls unquestionably within the ambit of both Article 4.1 and of Article 4.2. The mudflats at Lappel Bank provide good quality feeding and sheltering grounds for a number of waders and wildfowl, including curlew, redshank, turnstone, dunlin, ringed plover, great plover, and shelduck, all of which are also present in significant numbers throughout the Medway Estuary and Marshes. None of these species is listed in Annex I of the Directive. However, Lappel Bank is also an important component of the overall eco-system of the designated SPA, and the loss of its inter-tidal area would probably result in a reduction in the overall wader and wildfowl populations of the Medway Estuary and Marshes. All the species present on Lappel Bank are present in larger numbers throughout the relevant area, and it is not suggested that Lappel Bank is necessary for the survival of any particular species: however, as Mr. Gordon stressed, some species are represented proportionately in significantly greater numbers than elsewhere in the relevant area.
Turning now to the economic considerations, until 1949 Sheerness was a naval dockyard. It was acquired in 1966 by the Medway Conservancy Board, and its assets were subsequently transferred to the Medway Port Authority. Following the Ports Act 1991, the Authority formed Medway Ports Ltd, which was subsequently acquired under a management and employee buy-out.
The port enjoys both maritime and geographical advantages. Its principal natural attraction is its berthing facilities with naturally occurring deep water of 11 metres at any tide, which enables the Port to accommodate both small sea and deep sea vessels including traditional break bulk cargo ships. As one of the few ports in the South East of England offering such facilities, it has developed into a thriving commercial enterprise, and is now the fifth largest port in the UK for cargo and freight handling.
Its seaward situation at the mouth of the Thames Estuary and close to the major North Sea and English Channel shipping routes, attracts considerable trade. Its landward situation, on the North Kent coast, which is an area scheduled for significant future development and within easy reach of the Channel Tunnel and the main markets of London and the South East, is also very favourable.
As a result, it has developed three principal markets, namely:
(1) Vehicle imports comprising more than 365,000 vehicles a year which are currently imported through the port and delivered by Ro-Ro customised ships, with the vehicles stored at the port and then despatched to retailers.
(2) Fruit produce, of which the port handles approximately 300,000 tonnes a year, and which is either despatched immediately or stored prior to despatch in cold or ambient storage buildings.
(3) Forestry and paper products, of which the port handles 500,000 tonnes per annum, and for which it has 45,000 sq. metres of storage facilities.
The port now plans to develop and expand, but physical expansion can only realistically be achieved by reclamation and development of Lappel Bank, seeing that to the north and west the port is bordered by the sea, and on the land side to the east expansion of the port is prevented by the proximity of the urban areas of the town of Sheerness, the railway, and the A249 trunk road.
The current proposals would involve the construction of expanded facilities for car storage and the provision of value added activities on vehicles, taking them from their manufactured to their retail status. In the fruit and paper products market, the development aim is to provide value added facilities so that imports can be prepared for direct supply into the retail chain. This will enable the port to expand and increase its workforce, offering employment within an area where there is presently a serious unemployment problem, with a rate of over double the national average. The port is already a significant employer in the area, and enjoys good labour relations.
Very importantly, the experience of continental ports, with which Sheerness is in direction competition, is that in default of such expansion, importers are prone to take existing business to other ports which provide these additional facilities; with the result that Sheerness may wither away. It is thus plain that, in the words of Rose LJ, notwithstanding the "very strong ornithological factors" there are "strong economic factors which would justify the Secretary of State reaching the conclusion that he did, if he was entitled to take these factors into account".
After extensive consultations, by letter dated 16 March 1993, addressed to "interested parties", the Secretary of State expounded the rival ornithological and economic considerations, and recorded the provisional conclusion that bearing in mind the relative contribution of ... Lappel Bank ... to the bird life of the area and the use of the mudflats in question for economic improvement of the area to deal with the serious unemployment problem, he was "minded to exclude" Lappel Bank from the proposed SPA.
After further consultation, he communicated his final decision by letter dated 10 December 1993 in which he said:
"The Secretary of State has concluded that the natural conservation value of the 22 hectares of Lappel Bank does not outweigh the need to secure the economic future of Sheerness and the Isle of Sheppey, which is in the national, as well as regional and local, interest. He has decided, therefore, to exclude from the Medway SPA 22 hectares at Lappel Bank which are subject to a planning permission granted by Swale BC in August 1989."
There are three relevant authorities of the European Court of Justice.
(A) Commission v. Belgium  ECR 3029. In this case the ECJ held in relation to Article 7 that the scope of derogation was strictly confined to the reasons specified in Article 9. In their judgment, they stated as follows:
"... Article 9 of the directive authorizes the Member States to derogate from the general prohibitions and from the provisions concerning marketing and hunting. However, this possibility is subject to three conditions: first, the Member State must restrict the derogation to cases in which there is no other satisfactory solution; secondly, the derogation must be based on at least one of the reasons listed exhaustively in Article 9 ..."
They then describe those and proceed:
"Although Article 9 therefore authorizes wide derogations from the general system of protection, it must be applied appropriately in order to deal with precise requirements and specific situations.
In this context it is necessary to refer to Article 2 of the directive, which requires the Member States to take the requisite measures to maintain the population of al1 bird species as at a level, or to adapt it to a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, and from which it is therefore clear that the protection of birds must be balanced against other requirements, such as those of an economic nature. Therefore, although Article 2 does not constitute an autonomous derogation from the general system of protection, it none the less shows that the directive takes into consideration, on the one hand, the necessity for effective protection of birds and, on the other hand, the requirements of public health and safety, the economy, ecology, science, farming and recreation."
In his submissions to the Court, the Advocate General submitted:
"... that the Belgian Government cannot rely on Article 2 of the directive in referring to cultural and recreational requirements. The fundamental purpose of Article 2 is to define the general thinking behind the directive, essentially by providing a basis for the various provisions of the directive, in particular Article 9 and the derogations provided for therein. ... Accordingly, Article 2 in my view essentially contains guidance which the legislature imposed upon itself when adopting the directive.
I do not by any means rule out the possibility that Article 2 may also impose obligations upon the Member States with regard to the transposition of the directive into national law.
In any case, however, reliance upon the general terms of Article 2 is no substitute for compliance with the conditions laid down in the other provisions of the directive, such as Article 9 ..."
(B) Commission v. Germany 1991 ECR I-883 (the "Leybucht Dykes" case).
In this case the Commission alleged that, by increasing the height of the Leybucht Dykes as part of a coastal defence project, Germany had reduced the size of an already designated SPA in breach of Article 4.4. The case was not directly concerned with Article 4.1 or Article 4.2, but there are, nonetheless, references to them which are presently relevant.
The Commission's submission was as follows:
"According to the Commission, it appears from the Court's judgment [in the Belgium case] that Article 2 of the directive does not constitute an autonomous derogation from the general system of protection; rather it shows that the directive takes into consideration, on the one hand, the necessity for effective protection of birds and, on the other hand, the requirements of public health and safety, the economy, ecology, science, farming and recreation. Therefore, when those interests are taken into account they cannot be given the same weight in the context of Article 4 of the directive as in the case of measures coming within Article 3 of the directive.
When choosing the most suitable territories and when classifying them as special protection areas, there is no bar to taking into account the interests laid down in Article 2 of the directive. However, as far as the management of areas classified as special protection areas is concerned, Article 4(4) of the directive requires positive measures and precludes and deterioration of the habitats concerned."
The Advocate-General submitted as follows:
"26. The fourth subparagraph of Article 4(1) of the directive requires Member States to designate certain habitat areas of bird species mentioned in Annex I as protection areas. My understanding of the provision is that the Member States need not so designate all areas where there are suitable living conditions for the species concerned. They must so designate the most suitable areas of their territory, in other words the areas of their territory in which the most suitable living conditions for those bird species are present...
27. Article 4(2) of the directive makes separate provision for migratory birds which are not listed in Annex I but regularly occur on the territory of the Member State in question. That provision is poorly drafted and thus difficult to understand. The question arises inter alia whether the 'similar measures' referred to in that provision include the obligation to designate special protection areas in accordance with the fourth subparagraph of Article 4 (1). If paragraph 2 is read in conjunction with paragraphs 3 and 4 ... it must be concluded that the obligation laid down in the fourth subparagraph of Article 4(1) applies mutatis mutandis to the habitat areas of migratory birds referred to in paragraph 2."
He then referred to what "wetlands" means, and proceeded on in paragraph 28:
"The Commission acknowledges that the directive leaves the Member States some discretion in the choice of the areas to be designated. It observes in particular that in designating those areas the Member States may take into account inter alia the economic interests referred to in Article 2 of the directive. That discretion is also reflected in the Resolution of 2 April 1979, in which the Council takes note of the Commission's intention to submit proposals regarding inter alia the determination and selection of the special protection areas. The fact that the Commission intends to make proposals but has not yet done so ... shows, I think, that in the meantime it is for the Member States to decide what protection areas to designate, and a fortiori what their precise boundaries are.
The discretion of the Member States is not, however, unrestricted. They must in particular designate the most suitable areas as protection areas."
He then went on in paragraph 29 to say:
"This case, however, is concerned not with the discretion of the Member States in the designation of the boundaries of a protection area but with their discretion to change -- more specifically, reduce -- the extent of an area previously designated as a protection area. To what extent are the boundaries of an area designated by the Member State itself as a protection area sacrosanct? That seems to me to be one of the fundamental questions in this case that the parties have not fully examined."
He then analysed other Articles and proceeded in paragraph 30:
"The answer to the question raised above must therefore be that the reduction in extent of an area designated as a protected area is permitted only on mandatory grounds arising from a general interest which is more important that the environmental interest at which the directive is aimed or the economic and recreational interests referred to in Article 2 of the directive."
The European Court of Justice in their judgment, ruled as follows:
"20. Although the Members States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas pursuant to Article 4(1) of the directive, they do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of the areas, since they have themselves acknowledged in their declarations that those areas contain the most suitable environments for the special listed in Annex I to the directive. If that were not so, the Member States could unilaterally escape from the obligations imposed on them by Article 4(4) of the directive, with regard to special protection areas.
21. That interpretation of Article 4(4) of the directive is borne out, moreover, by the ninth recital in the preamble, which underlines the special importance which the directive attaches to special conservation measures concerning the habitats of the birds listed in Annex I in order to ensure their survival and reproduction in their areas of distribution. It follows that the power of the Member States to reduce the extent of a special protection area can be justified only on exceptional grounds.
22. Those grounds must correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In that context the interests referred to in Article 2 of the directive, namely economic and recreational requirements, do not enter into consideration. As the Court pointed out in ... Commission v. Belgium ... and (Commission v. Italy  ECR 3073), that provision does not constitute an autonomous derogation from the general system of protection established by the directive."
The Court then proceeded to hold that, on the exceptional facts of the case, there had been no breach of Article 4.4, seeing that that the danger of flooding and the protection of the coast constituted sufficiently serious reasons to justify the dyke works.
This very stringent and narrow construction of Article 4.4 was seen by Member States as unduly inhibitory, and as a result by the Habitats Directive (Council Directive 92/43/EEC of 21 May 1992) which came into force on 5 June 1994 and which is about to be enacted here, the limitations of Article 4.4 were relaxed to a small but significant degree:
"If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted."
(C) The Commission v. Spain  ECR 1-4221 (The "Santona Marshes" case).
The only official versions of this judgment presently published are in Spanish and French, but both sides have conducted their cases on an unofficial English translation prepared by the Foreign and Commonwealth Office to which I shall also refer.
In this case it was common ground that the Santona Marshes was an area which needed to be classified as an SPA under both Article 4.1 and Article 4.2, but Spain claimed discretion as to timing, and submitted that they could comply with those two paragraphs by gradual and progressive measures within a reasonable time-limit. As a result, the Commission alleged that Spain had failed to classify the marshes as an SPA in breach of Article 4.1 and Article 4.2. The Commission also alleged that Spain were in breach of Article 4.4 with reference to various proposed works, eg, construction of a new road, in derogation of the relevant area, which Spain sought to justify on economic grounds.
The Advocate-General said as follows:
"7. Article 4, paragraph 1 of the wild birds directive ... concerns the birds species mentioned in appendix I of the directive. They are species which are threatened or, in other respect, according to the Community legislator, warrant special attention. According to Article 4, paragraph 1 ... special conservation measures are taken for the habitats of these species ...
Article 4, paragraph 2 ... concerns migrating birds not mentioned in appendix I, but whose presence is regular. Member States must take 'similar measures' in regard to these species of birds. This implies that the territories which are most appropriate to the conservation of these species are to be classified as areas of special protection."
"10. The directive on wild birds makes it clear that, according to the terms of a previous Court judgment, 'the Member States enjoy a certain margin of discretion in choosing the most appropriate territories to be classified as areas of special protection in pursuance of article 4, paragraph 1 of the directive'.
However, as underlined by the Commission with good reason, this margin of discretion is not absolute. Indeed, the directive enjoins that 'the most appropriate territories in number and surface' for the conservation of these species 'in the geographical area - sea and land - of application of the present directive' have to be classified as areas of special protection ... In our opinion, this means that a Member State, confronted with scientifically established proof factors, which demonstrate convincingly the unique or very special interest of a habitat for the conservation of a bird species, listed in appendix I of the directive, or qualifying as a possible migrating bird whose presence is regular, would not fulfil its obligations by not classifying this habitat as an area of special protection."
The European Court of Justice stated as follows:
"18. ... it is clear from the judgment of the Court in ... Commission v. Germany ... (that is the Leybucht Dykes case] that, in implementing the directive, Member States are not entitled to rely as they wish on grounds for derogation based on the consideration of other interests.
19. As regards Article 4 of the directive more specifically, the Court stated in the above- mentioned judgments that those grounds, in order to be admitted, must correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In particular, the interests referred to in Article 2 of the directive, namely economic and recreational requirements, do not enter into consideration. In that respect, the Court held in it judgments in ... Commission v. Belgium ... and Commission v. Italy ... that the provision did not constitute an autonomous derogation from the general system of protection established by the directive."
The Court then proceeded to reject an argument put forward by Spain that they could not simultaneously be in breach of Article 4.1 and 4.2 on the one hand, and Article 4.4 on the other.
They then proceeded to consider designation under Article 4.1 and 4.2 and held:
"25. The Spanish Government recognizes the ecological value of this area ... However, it believes that the national authorities have some discretion with respect to the choice and delimitation of the special protection areas and when they are classified as such.
26. That argument cannot be accepted. While it is true that the Member States enjoy certain discretion with respect to the choice of special protection areas, the classification of these areas nevertheless follows certain ornithological criteria defined in the directive, such as the presence of birds listed in Annex I, on the one hand, and the description of a habitat as a wetland, on the other."
The Court then went on to consider the alleged breaches under Article 4.4 and rejected a number of arguments put forward by Spain which were founded on economic considerations, and stated in particular (paragraph 35):
"As the Court stressed in the [Leybucht Dykes] judgment, although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas, they do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of the areas."
In the Divisional Court, Rose LJ with whom Smith J agreed stated his conclusions very succinctly as follows (page 20B):
"In my judgment, Mr. Richards' submissions [for the Secretary of State] are well founded. The effect of the Santona Marshes case, when analysed, is not to provide the conclusive answer to the Secretary of State's conduct which Mr. Gordon submits. It seems to me that one has to look at the linkage between 4(1) and 4(2) and 4(4) in the opinion of the Advocate General in the context of the Spanish Government's claim that it could not properly be prosecuted under all limbs of that directive. Equally, so far as the judgment in that court refers to Article 4 globally, in my judgment it is clear from the reference to the Commission v. Germany case [that is Leybucht Dykes) which was concerned solely with Article 4(4), that in the Santona Marshes case the court was not seeking to establish principles of general application in relation to Article 4. There are indeed other passages in the judgment which are inconsistent with such a construction.
It seems to me that the Secretary of State in the present case in designating an SPA was entitled to take into account those economic and other factors to which Article 2 of the directive refers, and the message, if it can be so described, which I receive from the decisions of the European Court to which I have referred is that the limitation upon the discretion which is expressed in relation to Article 4(4) is not a limitation which is either express or implicit in relation to Articles 4 (1) and 4(2)."
The grounds of appeal are neatly epitomised in the Notice of Appeal, which contends that the Divisional Court erred in law in holding that the Secretary of State was entitled to take into account economic factors when refusing to designate Lappel Bank as part of the SPA, in holding that the ECJ in Santona Marshes was not seeking to establish principles of general application in relation to Article 4, and in holding that the message given by the ECJ decisions is that the limitation on discretion expressed in relation to Article 4.4 does not apply to Article 4.1 and 4.2.
Developing these grounds and dealing first with the construction of the Directive as it stands, without recourse to the authorities, Mr. Gordon submitted that the fundamental purpose of Article 2 is only as an aid to construction of the Directive as a whole, and that it does not enter into Article 4.1 or Article 4.2 which, he submits, lay down a self-contained code, requiring the Member Government to classify areas which fall within their scope. The word "suitable", he argued, is exclusively bird-orientated, and the process of classification involves the selection and declaration of the most suitable areas for particular species on purely ornithological grounds. It follows that, if the most suitable area (judged purely on ornithological criteria) could be disregarded in favour of a less-suitable area on economic grounds, the main purpose of the Directive would be emasculated and the duties laid down in Article 4.1 and Article 4.2 would be eroded. It is significant, he suggested, that Article 4, in contrast to Article 3, contains no reference to Article 2.
Turning to the authorities, he submitted that the Advocate- General's submission in Commission v. Belgium supported his interpretation of Article 2 and that the Court's decision, in concluding that Article 2 could not expand Article 9, indicated by parity of reasoning that Article 2 could not restrict Article 4.1 and Article 4.2. Leybucht Dykes, he argued, was not directly relevant since it was only concerned with Article 4.4. Nevertheless, the Advocate- General's interpretation of the meaning of "suitable" in Articles 4.1 and 4.2 was, he suggested, in line with his own. The Commission's view was, he submitted, wrong, and not adopted either by the Advocate General or by the Court.
The distinction drawn between Articles 4.1 and 4.2 on the one hand, and Article 4.4 on the other, related, he suggested, to the Member Government's discretion under the former, but not under the latter, to chose between competing sites and to reject the less-suitable, not to the applicability of Article 2 factors.
In Santona Marshes, he submitted, the Court had before it for the first time Article 4.1 and Article 4.2 and in paragraph 19, plainly laid down a general principle applicable to Article 4 as a whole.
He summarised his submissions as follows in his skeleton argument.
(1) Member States are under a duty to choose and classify SPAs in accordance with ornithological criteria. The classification of SPAs operates as a declaration that the areas classified as SPAs contain the most suitable environments for certain species of birds.
(2) There is a limited discretion with respect to the choice of SPAs but the discretion must be directed towards choosing the territories which are most suitable for classification as SPAs. Self-evidently, this is because Member States "are better placed than the Commission" to ascertain which of the protected species occur in their territory.
(3) The discretion falls away in circumstances where a member state is confronted with scientifically established proof factors pointing to a unique or exceptional interest. These are likely to include wetlands of international importance.
(4) The discretion will similarly fall away in circumstances where a Member State has chosen a particular area as suitable for classification as an SPA in relation to all those parts of that area which meet the necessary ornithological criteria for classification.
(5) Article 2 factors are irrelevant to Article 4 under the Birds Directive. However, when the Habitats Directive is implemented by the UK Government, it will allow economic and social factors to be taken account of in terms of derogation from an SPA, providing the prescribed procedure is followed.
In consequence, Mr. Gordon says that the proper construction of the Directive is clearly in his favour and that the Divisional Court was clearly wrong.
Ably though these arguments were presented, I am unable to accede to them, substantially for the reasons advanced by Mr. Fowler on behalf of the Secretary of State.
I first consider the terms of the Directive as it stand without recourse to the authorities. In common with most instruments of European law, it is drawn in very broad general terms. The preamble stresses not only the importance of bird conservation, but also the need for such conservation to be achieved within the scope of the objectives of improvement of living conditions and harmonious development of economic activities.
Article 2 unequivocally required Member States to take the requisite measures to maintain a prescribed level of population of the relevant bird species, while also taking account of economic and recreational requirements, thus stipulating a discretionary balancing exercise. This is in full harmony with the preamble.
Article 3 lays down broad general requirements for conservation, and is specifically made subject to Article 2. Article 4.1 and Article 4.2 lay down very specific duties in the defined circumstances, and require in each case an exercise of discretion by the Member State, which I think suggests prima facie that the discretionary considerations laid down in Article 2 apply and that suitability is to be judged on Article 2 criteria and not solely on ornithological grounds. Moreover, even though Article 4.1 and Article 4.2 do not, in contrast to Article 3, expressly incorporate Article 2, the duties laid down in the former, namely the specific obligations to classify SPAs in the prescribed circumstances, fall within the general ambit of Article 3, so it would be surprising if Article 4 is not also subject to Article 2.
Article 4.4 on the other hand, is concerned not with classification but with derogation and is not discretionary, and so is not apt to fall within Article 2. Equally, Articles 5 to 8 inclusive are not discretionary, but lay down specific prohibitions from which only very narrow criteria for derogation are laid down in Article 9. Thus they also are not apt to fall under Article 2, which, in consequence, does not provide autonomous derogation from the Directive system of protection.
The key question is the meaning of the word "suitable" in Article 4.1 and also by implication in Article 4.2, by reason of the requirement in the latter to take "similar measures". If Mr. Gordon were right that it is exclusively bird orientated, the rest of his argument would fall into place. In my judgment, however, for the reasons I have given, the natural meaning in the context is suitability in the light of the considerations laid down in Article 2 and not exclusively on ornithological grounds.
Is there anything in the decided authorities which compels the opposite conclusion? In my judgment, the answer to that question is "No". Commission v. Belgium is, in my judgment, fully consistent with the above analysis. The Court was concerned with Articles 7 and 9 from which they held Article 2 constitutes no automatic derogation. But they went on to make it clear that nonetheless the Directive does take into consideration the Article 2 balancing exercise. Despite Mr. Gordon's submission to the contrary, I am unable to find clear guidance in the Advocate-General's submission in this case, or in the other two cases, as to the impact of Article 2 specifically on Articles 4.1 and 4.2, or as to the meaning of the word "suitable" in the latter.
In Leybucht Dykes, the ECJ in paragraph 20 draws the clear contrast between Article 4.1 and 4.2 on the one hand, and Article 4.4 on the other. The contrast is based on a strictly logical distinction between the two stages, namely, that when considering Article 4.4 derogation from an already designated area, the Member Government has already completed the first stage, declared the most suitable area, and thus exhausted its discretion. That the distinction which the Court had in mind was the applicability of Article 2 seems to me to be placed beyond doubt by the explanation in paragraph 22 that it is in the context of Article 4.4 that Article 2 interests do not enter into consideration.
This seems to me to be an endorsement of the Commission's view to which I attach some importance, and which I do not think the Advocate-General rejected.
In Santona Marshes the Court, far from casting doubt on Leybucht Dykes, explicitly re-affirmed that decision in paragraphs 18 and 35 of the judgment. I am therefore unable to accept Mr. Gordon's submission that paragraph 19 is to be read as extending to Article 4.1 and 4.2 by reason of its reference to Article 4 simpliciter. I am quite satisfied that, as Rose LJ held in the Divisional Court, this paragraph should be construed in its context as referring only to Article 4.4, which was the only paragraph under which Spain invoked Article 2 considerations, the issue under Article 4.1 and Article 4.2 being limited solely to timing and not to the eligibility of the Santona Marshes for classification.
All three cases, therefore, in my judgment, tend to support the Secretary of State's case here.
Neither side relied on the Habitats Directive as a guide to construction of the Birds Directive: it is however worthy of comment that Article 4.4 in its original form, as construed in Leybucht Dykes, apparently precluded a Member State from even taking into account economic considerations only emerging subsequent to classification, and this no doubt was a significant influence in favour of the amendment introduced by the Habitats Directive.
Here we are concerned with economic considerations which were already manifest at the classification stage. It would surely be, to say the least, highly anomalous if the Member Government is obliged to disregard Article 2 considerations at the classification stage, and then, having classified on purely ornithological grounds, to embark forthwith on a fresh procedure under Article 4.4 (as amended) where economic considerations are pertinent, albeit only within the narrow confines laid down by the Habitats Directive.
Finally, since as I think the Member State has a discretion with respect to the choice of SPAs under Articles 4.1 and 4.2 (including assessment of Article 2 considerations) it seems to me that a fortiori it must have a similar discretion with regard to the delimitation of precise boundaries (see the similar view quoted above in the Advocate General's opinion in Leybucht Dykes). This is all the Minister has done by excluding Lappel Bank from the curtilage of the Medway SPA, having regard to the overwhelmingly powerful economic factors.
Thus, in my judgment, the construction of the Directive is clear and there is no need, as Mr. Gordon suggests as a fall-back in his argument, to refer the case to the European Court of Justice under Article 177.
For all these reasons, I agree with the decision of the Divisional Court and the grounds upon which that decision was based. I also agree with the judgment Steyn LJ is about to deliver. I would therefore dismiss this appeal.
LORD JUSTICE HOFFMANN: The 9th recital to the Directive on the conservation of wild birds says the preservation of a sufficient diversity and area of habitats is essential to the conservation of all species of wild bird but that special measures are needed to ensure the survival and reproduction of certain particular species. This distinction between the generality of wild birds and the special needs of particular species is reflected in Articles 3 and 4. Article 3, which applies to all species of naturally occurring wild birds, is very general indeed. It says that Member States shall take "the requisite measures" to preserve, maintain or re-establish a sufficient diversity and area of habitats. Article 3.2 gives examples of such measures but does not define them. The duty of the Member State under Article 3 is expressly linked to Article 2, which entitles Member States to balance the needs of bird conservation against "economic and recreational requirements".
Article 4, on the other hand, is much more specific. Article 4.1 applies only to the particular species mentioned in Annex I and says that they shall be the subject of "special conservation measures". It imposes a mandatory obligation upon Member States to "classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species". Article 4.2 imposes a similar requirement for the breeding, moulting, and wintering areas of migratory species and staging posts along their migratory routes. It says that particular attention shall be paid to the protection of wetlands and still more particular attention to wetlands of international importance. Article 4.4 says that Member States shall take the appropriate steps to avoid pollution or deterioration of habitats or any disturbance affecting the birds in areas classified under 4.1 or 4.2. None of these obligations is expressly qualified by reference to the economic and recreational requirements mentioned in Article 2.
The Lappel Bank is accepted to be wetlands of international importance and therefore qualifying for the highest degree of protection under Article 4.2. It is also the home of two species of listed birds qualifying for special conservation measures under Article 4.1. But the Secretary of State has excluded Lappel Bank from the Medway Special Protection Area on the ground that its development for the purpose of extending the port of Sheerness is of great economic importance. He claims to be entitled by virtue of Article 2 to balance the needs of bird conservation against the economic development of Sheerness.
In my judgment Article 2 has no part to play in the determination of whether an area should be classified under Article 4.1 or 4.2. These provisions are too specific to yield to qualification on such general and amorphous grounds. This would deprive the wetlands and listed species of that stringent protection which the Directive was intended to provide (see the 7th recital). Article 2 states the general philosophy of the Directive, namely that bird conservation is not an overriding imperative but must be balanced against other desirable ends. Because Article 3 is expressed at a high level of generality, it incorporates a reference to the need for such balance. But when one comes to Article 4, the philosophy of Article 2 has already been taken into account by the restricted number of species to which the Article applies and the limit of Special Protection Areas to "the most suitable territories in number and size". There is no room for the re-entry of Article 2 to permit a further watering down of its requirements.
On this point it seems to me that the jurisprudence of the European court is perfectly clear. The governing decision is the case of the Santona Marshes, decided on 2 August 1993. I read paragraph 2 of the official headnote (or Sommaire de 1'arrêt). This has been drafted by officials of the Court and has no binding effect, but it is approved by the Judge Rapporteur and the other members of the Court:
"In implementing Directive 79/409, concerning the conservation of wild birds, Member States are not authorised to invoke at will reasons for exemption drawn from taking other interests into account. More particularly in regard to the obligation to adopt special conservation measures for certain species, set out in Article 4 of the Directive, if these reasons are to be accepted, they must correspond to a general interest greater than that involved in the ecological objective covered by the Directive. In particular, the interests mentioned in Article 2 of the Directive, namely economic and recreational requirements, could not be taken into account, as this provision does not constitute the unilateral exemption from the system of protection laid down by the Directive."
Thus the official headnote states in unambiguous terms that in regard to the obligation to adopt -- I underline the word adopt -- special conservation measures for certain species set out in Article 4, the economic and recreational interests mentioned in Article 2 cannot be taken into account. Nevertheless, it appears that the majority of this court is proposing to decide that it is acte claire, beyond reasonable argument, that the case decides nothing of the kind and that in applying Article 4.1 or 4.2 the Secretary of State is entitled by virtue of Article 2 to balance the interests of bird conservation against general economic and recreational interests.
This conclusion seems to me to be based upon a misreading of both the Santona Marshes case and the earlier Leybucht Dykes case on which its reasoning is founded. The Leybucht is a bay on the low-lying East Frisian coastline, surrounded by ancient dykes. It is a wetland of international importance, a nesting and feeding area for listed and migratory birds. In 1985 it was declared a Special Protection Area. The Land Niedersachsen undertook works within the area to strengthen the sea defences which reduced the area available as habitat and disturbed some birds. The Commission brought an action under Article 169 alleging breach of the obligation under Article 4.4 to avoid deterioration of habitats or disturbance of birds in a Special Protected Area.
The German Government argued that both in designating special protected areas and determining the necessary protection measures for those areas, Member States could take into account the other public interests listed in Article 2. The Commission conceded that in choosing the most suitable territories (that is, under Articles 4.1 and 4.2) the interests mentioned in Article 2 could be taken into account but they said that one could not derogate from the duties imposed by Article 4.4. The Advocate-Genera (Van Gerven) noted without express comment the Commission's concession on Articles 4.1 and 4.2. At the same time, however, he said that the discretion of Member States in the matter of designation under Article 4.1 and 4.2 was not unrestricted: "They must in particular designate the most suitable areas as protection areas" and "most suitable" in his opinion meant "the areas of their territory in which the most suitable living conditions for those bird species are present". The suitability of territories is thus a purely ornithological matter, a proposition from which the Court has never subsequently departed. It is not easy to see how the Commission's concession can be reconciled with an obligation to designate territories defined exclusively by ornithological criteria. The Advocate-General did not attempt to do so and he did not need to address that question because the case concerned Article 4.4 on which he agreed with the Commission that Article 2 had no part to play. The Court likewise confined itself to Article 4.4. It began its analysis in paragraph 18 by saying "it is necessary to settle a number of questions of principle concerning the obligations of Member States under Article 4.4". In paragraph 20 it said:
"Although Members States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas pursuant to Article 4(1) of the directive, they do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of the areas, since they have themselves acknowledged in their declarations that those areas contain the most suitable environments for the special listed in Annex I to the directive."
Thus the Court conceded to Member States a "certain discretion" in the choice of territories which ceased to exist once they had been chosen. It by no means follows that the Court was accepting that the exercise of that discretion allowed the economic and recreational interests mentioned in Article 2 to be taken into account. In my view, the Santona Marshes case shows that the discretion is confined to a margin of appreciation in deciding the ornithological question of which are the most suitable territories.
In paragraph 21 the Court went on to say that the power of a Member State to reduce the extent of a special protection area could be justified only on "exceptional grounds". Paragraph 22 explained that "exceptional grounds" meant "a general interest which is superior to the general interest represented by the ecological objective of the directive" and emphasised that for this purpose the economic and recreational interests mentioned in Article 2 did not enter into consideration. The exceptional grounds do not involve any balancing or weighing of one interest against another: rather the Court is recognising that the public interest in bird conservation can be trumped by a superior public interest, such as, to take an extreme example, the preservation of human life.
The Court held that in the case of the Leybucht Dykes, exceptional grounds had been shown to exist:
"... the danger of flooding and the protection of the coast constitutes sufficiently serious reasons to justify the dyke works and the strengthening of coastal structures as long as those measures are confined to a strict minimum and involve only the smallest possible reduction of the special protection area."
The Leybucht Dykes case is about Article 4.4 and contains only glancing references to the earlier parts of Article 4. But the whole of Article 4 and its relationship with Articles 2 and 3 came under consideration in the case of the Santona Marshes. The marshes lie between Santander and Bilbao and are the particular habitat of very rare white spoonbills and 18 other species listed in Annex I. Most of the area had been declared a bird reserve but no official designation for the purposes of Article 4.1 had been notified. The Commission brought proceedings both under Article 3 and Article 4.1 and 4.4 alleging first that the whole area should have been designated and secondly, various acts of disturbance and pollution, such as permitting the construction of the new road across the marshes, and the creation of industrial enterprise zones and associated works.
The Spanish Government advanced a number of arguments which are not presently material. The Court's reasoning begins with a section headed "The interpretation of Articles 3 and 4 of the Directive". In paragraphs 9-12 it disposes of the Spanish argument that the Directive did not require an immediate implementation. In paragraphs 13-15 it deals with the Spanish argument that the Directive imposes only a duty to achieve a result, namely to conserve birds. Provided that the birds do not disappear, there can be no breach of the Directive. The Court had little difficulty in rejecting this argument, saying that the obligations under Articles 3 and 4 were specific and arose before the number of birds had actually been reduced.
Paragraphs 16 and 17 contain the critical submissions:
"16. Thirdly, the Commission points out the mandatory nature of the obligations under Article 4 of the Directive.
17. In the opinion of the Spanish Government, the ecological requirements laid down by that provision should be subordinate to other interests, such as those of a social and economic nature or, at the very least, balanced against such interests."
Notice that, as stated by the Court, the issue between the Commission and the Spanish Government concerned the scope of Article 4 - not one sub-paragraph of that Article, but the whole of Article 4. We have been taken to the statement of submissions by the Judge Rapporteur in order to show that the Spanish Government advanced no submission to the effect stated in paragraph 17 except in relation to Article 4.4. For my part, I do not think the Report for Hearing supports this submission. But I do not think it matters. The question is what point the Court thought it was deciding and I think it is clear from paragraphs 16 and 17 that it thought the question related to the whole of Article 4. There is no misprint. The official French text refers to "1'article 4 de la directive".
The Court dealt with the matter in paragraphs 18 and 19:
"18. That argument cannot be accepted. Indeed it is clear from the judgment of the Court in the [Leybucht Dykes] case that, in implementing the directive, Member States are not entitled to rely as they wish on grounds for derogation based on the consideration of other interests.
19. As regards Article 4 of the directive more specifically, the Court stated in the above- mentioned judgment that those grounds, in order to be admitted, must correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In particular, the interests referred to in Article 2 of the directive, namely economic and recreational requirements, do not enter into consideration. In that respect, the Court held in it judgments in Commission v. Belgium  ECR 3029 and Commission v. Italy  ECR 3073 that the provision did not constitute an autonomous derogation from the general system of protection established by the directive."
The Secretary of State says that despite the references to Article 4 in both paragraph 16 and paragraph 19, the Court is really confining itself to Article 4.4 and it is perfectly clear that for the purposes of Articles 4.1 and 4.2, the interests mentioned in Article 2 can be taken into consideration. The only basis for this submission is that the Court cites its previous judgment in Leybucht Dykes which was an Article 4.4 case and, furthermore, contains no adverse comment on the Commission's then concession that Article 2 matters could be taken into account at the designation stage. This seems to me an inadequate foundation for a submission that the Court did not mean what it actually said. In my judgment, the Court was generalising the reasoning of Leybucht Dykes and applying it to Article 4 as a whole, just as it was generalising the reasoning of Commission v. Belgium and Commission v. Italy, neither of which cases, as Lord Justice Hirst has pointed out, actually concerned Article 4 at all. Generalisations and analogies of this kind are a common form of legal reasoning. So in my view, there is no reason to question the accuracy of the headnote on this point, which as I have said, is perfectly clear.
I would therefore have held that the Secretary of State misdirected himself or at any rate, out of respect for the contrary views of my Lords and the Divisional Court, have referred the question to the European Court for a preliminary ruling. I should say that I might nevertheless as a matter of discretion have dismissed the appeal on the grounds that economic argument for excluding Lappel Bank is so strong and the relative size of the bank so small that, if the Secretary of State had applied the correct test, namely "a general interest superior to the general interest represented by the ecological objective of the directive" he would still have arrived at the same answer. But since my Lords think that the effect of the Directive is clear in the opposite sense from mine, we have heard no argument on this point.
LORD JUSTICE STEYN: I agree with the order proposed by Lord Justice Hirst and with his reasons for doing so. In deference to the excellent argument of Mr. Gordon QC, which has in substance been accepted by Lord Justice Hoffmann, I shall, however, briefly state the reasons why I have come to the same conclusion as Lord Justice Hirst.
By his decision of 15 December 1993, the Secretary of State for the Environment classified the Medway Estuary and Marshes, excluding the Lappel Bank, as a Special Protection Area for birds. The Secretary of State was called on to make that decision under Article 4.1 of the European Council Directive 79/409/EEC. The duty of Member States is set out in the following part of Article 4.1:
"Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies."
In deciding to excise the Lappel Bank from the Special Protection Area the Secretary of State took into account strong conservation factors which militated in favour of the inclusion of the Lappel Bank, but concluded that those factors were outweighed by cogent economic factors tending to show that if the Lappel Bank is included, the port of Sheerness will not be able to undertake the necessary expansion and will inevitably go into decline and wither away. On these stark factual premises, which Lord Justice Hirst has explained in detail, a narrow but important point of construction of Article 4.1 of the Birds Directive arises.
The question is simply whether under Article 4.1 economic factors may ever be taken into account. If the Secretary of State was in principle entitled to take into account economic factors, it may well be that under Article 4.1 providing for special protection areas, economic factors are entitled to less weight than under Article 3 which provides for protection areas simpliciter. Such a difference in approach between protection areas under Article 3 and special protection areas under Article 4.1 would reflect a purposive construction of the Directive. It has in the past been put forward by the Commission. But that is not the point in this case. The question is simply whether a Member State may ever take into account economic factors when acting under Article 4.1.
A similar question arises under Article 4.2, but I do not propose to complicate my judgment by considering Article 4.2 separately since the answer in my judgment to it must be the same as in respect of Article 4.1.
Mr. Gordon submits that no matter how overwhelming the economic factors may be, they may never be taken into account in deciding upon classification under Article 4.1. The only concession he makes is that superior interests, such as protection of health and safety of the public in a narrow sense may prevail over conservation factors. He disputes that economic factors may ever amount to such a superior interest. He submits that mere economic factors, however strong, and even if they effect vital national economic interests, are always irrelevant. That this is indeed the case under the Directive after classification is common ground. The question is whether Mr. Gordon's perfectly logical submission is correct in respect of the initial process of classification. It is a question of construction of Article 4.1 read in the relevant context. It is common ground that this question of construction cannot be affected by the Habitats Directive (92/43/EEC) but I note that it has moderated the previously rigid position in the post classification period.
The results of Mr. Gordon's interpretation are startling. Article 2 permits recreational requirements of the public to be taken into account together with ecological requirements. These factors may point in different directions, but recreational requirements cannot possibly be regarded as a superior interest in the relevant sense of the word. Postulate now an area such as the Norfolk Broads. For a very long time the public has had the use of that area for recreational purposes. If it should be the case the area also has a mass of rare birds, would the Secretary of State have to shut his mind to the use that the public, historically and currently, have had of access to that area in making a decision of classification under Article 4.1? Mr. Gordon says yes. That is undoubtedly logical, but the result is absurd. Similarly, it is easy to visualise cases where the economic case against classification under Article 4.1 is even stronger than in the present case. Must the Secretary of State in all such cases ignore the economic case, even if it affects vital economic interests, in the process of classification? Mr. Gordon says yes, but that would be an astonishing result. Such rigidity and mechanical jurisprudence is not the European way.
European jurisprudence, like English law, proceeds on the basis that the more unreasonable a construction is, the clearer must be the wording to justify it, and I regard Mr. Gordon's construction as utterly unreasonable and at variance with a practical and balanced approached to the needs of Member States.
It seems to me that the error in Mr. Gordon's approach is that he is urging on us a literal construction masquerading under the seemingly orthodox principle of giving effect to the ordinary meaning of words. The Birds Directive is a community instrument. The literal approach has long been abandoned in European jurisprudence in favour of a contextual and teleological or purposive approach. That is how I would approach the matter.
The importance of a contextual approach is underlined by the sixth preamble of the Birds Directive which contemplates "a harmonious development of economic activities throughout the community and a continuous and balanced expansion". Other preambles spell out the ecological case for the protection of birds in various ways, but I take as my starting point that it would be astonishing in the light of the context of the objectives and guiding principles of the erstwhile European Economic Community (now the European Community and European Union) if even an overwhelming economic case must also be ignored in classifying sites under Article 4.1.
I readily accept Mr. Gordon's contention that "economic and recreational factors" under Article 2 cannot amount to an "autonomous derogation" in the language of European jurisprudence. But under Article 2 such factors are relevant countervailing factors to be weighed against the environmental case.
Approaching the matter in a contextual and purposive way, it seems to me that Articles 2 , 3 and 4.1 are a coherent group of provisions which must be read together. Article 2 is the general provision which authorises countervailing factors, giving the whole picture, to be considered under Articles 3 and 4.1. On the other hand, once a site has been classified under Article 4.1 the position is different under Article 4.4 and a classified site cannot be reduced on purely economic grounds. That seems to me a sensible construction and the generality of the wording "suitable territories" is consistent with reading Article 2 as also applicable to Article 4.1.
It is true that Article 3 expressly refers to Article 2 and that Article 4.1 does not, but this is a poorly and loosely drafted Directive. Much has to be read into it to make sense of it. For example, it does not even contain a reference to a "superior interests" qualification. It also does not in any way define "special conservation measures" or for that matter "protection requirements".
In this context the expressio unius exclusio alterius canon of construction, based on the express reference to Article 2 in Article 3, is a mere make-weight and it outweighed by the contextual matters to which I have referred.
Lastly I turn to the decisions of the European Court of Justice. Mr. Gordon concedes that case C-57/89 Commission v. Germany  ECR 1-883 (the Leybucht Dykes case) does not assist him at all. I agree with what Lord Justice Hirst has said about this case. In particular, I regard the observations in paragraphs 19-22 of the judgment as making clear that, after classification, economic factors may not be invoked to reduce the special protection area, but that by contrast in the process of classification, such factors are not irrelevant.
Mr. Gordon did strongly rely on case 355/90 Commission v. Spain  ECR 1-4421 (the Santona Marshes case). For the reasons given by Lord Justice Hirst, I do not consider that this case helps Mr. Gordon's argument. The critical paragraph in the judgment is paragraph 19, which Lord Justice Hirst has quoted. The abstract nature of the judgment as a whole in the Santona Marshes case has caused considerable confusion. Two points are however, in my view, clearly established. First, the question whether economic factors can be taken into account in classifying under Article 4.1 was not an issue in the Santona Marshes case. Mr. Gordon concedes as much. I mention this not in order to transpose the distinction between ratio and dicta to European jurisprudence. That would be wrong since the doctrine of stare decisis in its rigid English form is not part of European jurisprudence. On the other hand, since the point before us was not in issue in the Santona Marshes case, it is prima facie unlikely that the Court intended to comment on it. Secondly, in paragraph 19, the European Court of Justice makes clear that it is merely following the Leybucht Dykes case which is contrary to Mr. Gordon's submission. I would hold that the Santona Marshes case, while by no means clear, is properly construed of no assistance on the point in issue in this case.
For my part, I am satisfied that Mr. Gordon's contextual and literal interpretations should be rejected. I regard the matter as plain and I regard a reference to the European Court of Justice as unnecessary. I would add that the differences of judicial opinion that have emerged in this case have nothing to do with inarticulate major premises about environmental matters. We all share the instincts of the Bird Man of Alcatraz. The case turns rather on a principled difference of opinion as to the legal approach to the process of construction in this case. For these reasons, the reasons given by Lord Justice Hirst, and the reasons given by Rose LJ in the Divisional Court, I would also dismiss the appeal.
Order: Appeal dismissed with costs: RSPB to pay the Secretary of State's costs, but not the Port of Sheerness; leave to appeal to the House of Lords; application for interim relief refused.