COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Mr Justice Pitchford
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
SIR CHARLES MANTELL
| The Queen on the Application of JHM Newsum
|- and -
|Welsh Assembly Government
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 Martin Kingston QC and David Park (instructed by Bremners) for the Respondent
Crown Copyright ©
Lord Justice Waller :
"This was insufficient to demonstrate an overriding public interest now or within the timescale required to relocate the newts. If the situation in relation to overriding need for the quarry products were to change at some time in the future it would be open to [the trustees] to make a new application for a licence…."
"Mr Jarman accepts that an application for this licence could have been appropriately addressed to the Countryside Council for Wales under regulation 44(2)(c). What then would have been material considerations for the Council? The claimants would be seeking a licence to conserve a protected species because, in light of the planning permission, it is likely the species would otherwise be harmed. If Mr Jarman's argument is sound the Council would be entitled to refuse the application simply on the ground that there was a satisfactory alternative within the meaning of regulation 44(3)(a), namely not pursuing the development under extant planning permission. In my view, that cannot be right. It seems to me the Council would be bound to proceed on the basis that the permission entitled the developer to commence operations subject to regulations 39 and 40."
reason of overriding public interest including those of . . . beneficial consequences of primary importance for the environment"? I have not found this an easy question. First I do not find the language all that easy, but it seems the respondents accept, and I think rightly, that we are concerned to identify an imperative reason which is both of overriding public interest and with beneficial consequences for the environment. Second I do not find the judge's reasoning as to why the purpose of conserving the gcns with which this case is concerned was "an imperative reason of overriding public interest" easy to follow.
"Provided the planning authority or the regulation 44 decision maker or both addressed the admissible overriding public interest issues, then it seems to me the United Kingdom's application of the directive is indeed compliant. Whether the existence of a planning permission can form the justification for grant of a licence will depend on the circumstances of the individual case."
But that does not point to the decision being one that must necessarily be taken under regulation 44(2)(e). Whether planning permission can form the justification for a licence will depend upon the purpose which forms the basis for the application for a licence. If the licence is sought to destroy the gcns or their breeding site, and the purpose relied on is that quarrying will have that effect when it is carried out, then the purpose being relied on is the quarrying and that could only be justified on the basis that the quarrying provided a reason of overriding public interest. That application could only be made under regulation 44(2)(e). In that context it is not suggested by Mr Kingston that the simple grant of planning permission would establish that overriding public interest. If however the application for the licence was founded purely on the basis that the purpose was to "conserve" certain gcns by relocating them, and it was that process of relocation which would involve destroying their initial habitat and killing some gcns, then although the planning permission which might lead to the gcns and their breeding sites otherwise being destroyed could, in one sense, provide the justification, it would not be necessary that the quarrying supplied an "imperative reason of overriding public interest". It would simply be part of justifying the grant under regulation 44(2)(c) where a reason of overriding public interest has no relevance.
"That judgment, it seems to me, is bound to include an assessment and whether the applicant could proceed without criminal liability under regulation 39. If so, the more weighty becomes the public interest in managing the disturbance to the advantage of the environment. Here, the Assembly was faced with an application by developers who did not need planning permission, nor was their existing planning permission subject to conditions which would prevent re-commencement of quarrying on environmental grounds or without a regulation 44 licence. In my judgment, had the Assembly correctly interpreted regulations 39, 40 and 44, it would have concluded that protection of the species was, in the circumstances of this application, of itself capable of amounting to an admissible public interest. In excluding such a public interest from its consideration and confining itself to an assessment of the demand for the limestone product, it seems to me the Assembly failed to take account of a material consideration, thus acting irrationally in the Wednesbury sense, and the decision should not stand."
In para 116 the judge refers to "admissible public interest", but the search is for "an imperative reason of overriding public interest."
Lord Justice Tuckey: I agree.
Sir Charles Mantell: I also agree.