Case No: C3/2004/0342

Neutral Citation Number: [2004] EWCA Civ 1565
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM      
Mr Justice Pitchford
CO/1872/03
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 22nd November 2004

Before :

LORD JUSTICE WALLER
LORD JUSTICE TUCKEY
and
SIR CHARLES MANTELL
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Between :

	The Queen on the Application of JHM Newsum	Respondent	
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	Welsh Assembly Government	Appellant	

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(Transcript of the Handed Down Judgment of
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Mr Milwyn Jarman QC and Andrew Keyser (instructed by theTreasury Solicitor) for the Appellant
Mr Martin Kingston QC and David Park (instructed by Bremners) for the Respondent

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Judgment
Lord Justice Waller : 
1.	This is an appeal from the judgment of Pitchford J dated 4th February 2004 by which he quashed the decision of the Welsh Assembly Government (the Assembly) refusing to grant to the Trustees of the Estate of the Duke of Westminster a licence to “translocate” a population of great crested newts (gcns) from a quarry to a specially prepared site.  The application for a licence was made under regulation 44(2)(e) of the Conservation (Natural Habitats etc) Regulations 1994 (the 1994 regulations).  

2.	The point which arises on the appeal, putting it very shortly for the moment, is this.  Regulation 39 provides for it being an offence deliberately to kill gcns and (and this need not be deliberately) to damage or destroy breeding sites of gcns.  But by regulation 40(3)(c) a person is not guilty of an offence by reason of “any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided”.  Liability under regulation 39 is also excluded for anything done for certain purposes and in accordance with a licence  obtained under regulation 44.   Regulation 44(2)(e) identifies one purpose as being  “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.”  The Trustees’ case is that they have planning permission which allows them to do the very things which will “incidentally” and “unavoidably” kill gcns or damage or destroy the breeding site of gcns.  They say that arguably by virtue of regulation 40(3)(c) they will not be committing an offence if they do those things.  They say in addition to the importance of allowing this quarry to be worked, it is a reason of overriding public interest that the gcns should be preserved, and a licence should be granted to relocate them.  The Assembly say that under regulation 44(2)(e) the preservation of the gcns is not a matter of overriding interest, and the question of whether the Trustees would or would not be guilty of an offence under regulation 40 (3)(c) if they carried out the works authorised by the planning permission is an immaterial consideration.   They say that there is no reason of overriding public interest in allowing the quarry to be worked at present, and thus no licence should be granted to relocate the gcns.

Background

3.	Since there is no challenge to substantial parts of Pitchford J’s judgment it is convenient to append the same to this judgment.  Both Mr Milwyn Jarman QC for the appellant Assembly and Mr Martin Kingston QC for the respondent Trustees adopted as accurate parts of the judge’s judgment which set out the following aspects fully and clearly - the background to the claim, paragraphs 1 to 11; the relevant parts of the European Directive on the Conservation of Natural habitats and of Wild Fauna and Flora [92/43/EEC] (the Habitat Directive), and the 1994 regulations, paragraphs 12 to 20; the history of the application for a regulation 44 licence, paragraphs 21 to 27; the correspondence leading up to the decision paragraphs 28 to 42; the submissions by consultees paragraphs 43 to 49; relevant passages of the decision letter of 14th February 2003 paragraphs 50 and 51and passages in the post decision correspondence paragraphs 52 to 53.  I do not repeat those parts but simply incorporate them as part of this judgment.

4.	In the decision letter it is common ground the Assembly simply concentrated on whether there was a present need for the quarrying of chert and limestone, indicating that there was in reality no issue that there was “currently sufficient production capacity and permitted reserves to meet local and regional demand” and that this was in line with the trustees view since they “had no immediate plan to reopen the quarry”.  The submission for a licence was (the letter records) being made to safeguard the planning permission and the value of the Estate’s interest in the quarries.  The letter indicated that the situation might change in the future making the site a relatively desirable source for aggregates, but stated:-

“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….”

5.	The complaint of the trustees, as ultimately identified following the correspondence after the decision, was that in the decision letter the assembly had ignored the existence of a valid planning permission; ignored the likelihood that in carrying out the authorised works which would unavoidably damage the gcns they (as the trustees contended) might be acting lawfully by virtue of regulation 40(3)(c); and had failed to have regard to the issue whether preservation provided a reason of overriding public interest.  They further submitted that it could not be right to postpone matters until circumstances altered because it was important to take time to relocate the gcns.

6.	The Assembly’s position was that the existence of the planning permission was relevant but not determinative of whether a licence should be granted; it was not for them to decide whether, if the trustees chose to quarry and thereby damage the gcns, they would be committing an offence (but they did not accept that they would not be); and the preservation of the species which the regulations were designed to safeguard could not be “an imperative reason of overriding public interest” within regulation 44(2) (e).

7.	It was these issues to which submissions were made to the judge as recorded by him in paragraphs 55 to 63 so far as Mr Kingston for the trustees is concerned, and in paragraphs 64 to 75 so far as Mr Jarman for the Assembly is concerned.  Those submissions were essentially repeated before us, and it is thus not necessary to rehearse them.

8.	The key issue, albeit much background may be traversed to provide the context, is one of construction of regulation 44(2)(e), and whether the preservation of the species which the regulations are designed to protect can itself provide “an imperative reason of overriding public interest”.  I do not myself think that the question whether the trustees if they chose to quarry will be committing an offence is a question which needs to be answered, or indeed should be answered.  It is sufficient, and no one I think would dispute this, that it is certainly arguable that the circumstances may be such that they might not be committing an offence, and it is certainly possible that the Trustees will act in accordance with the planning permission, whether or not they obtain a licence to relocate the gcns.  Thus there is a risk that operations will take place which will kill gcns and damage or destroy the breeding site of gcns.  

9.	What the Trustees appear to be seeking to do is to “conserve” the gcns which are at present in the location where they wish to quarry.  If they are to relocate them before they carry out any works which might incidentally damage the gcns or the breeding site, they wish deliberately to capture, and deliberately to disturb the gcns and damage or destroy their breeding site or resting place, all offences under regulation 39 unless they have a licence to do so.  At first sight one would have thought the Trustees should have been applying for a licence for the purpose of conserving the gcns under regulation 44(2)(c).  That is a licence which under regulation 44(4) it would be for the Countryside Council for Wales (the CCW) to issue.  Before issuing they would have to consider whether “there is a satisfactory alternative”, and whether “the action authorised will be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their range” [see regulation 44(3)].  But the question  whether it was necessary to start quarrying having regard to production elsewhere  may not be a material consideration.  The judge said at paragraph 104:- 

“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.”

10.	That is a view with which I did not understand Mr Jarman before us to quarrel.  But he did say that it is not for the Assembly to take a view of what the CCW may take into account, and it is true that this was not in fact an application to the CCW, so no submissions from them on this point have been received.

11.	I should also record that, at the commencement of the appeal, we raised the question whether the application should not have been made to the CCW in reliance on regulation 44(2)(c), Mr Jarman’s submission was that it might well be that that was so, but it was not a matter for the Assembly to advise the appropriate course for the trustees to take.  Mr Kingston pointed out that, in a paragraph of a letter not quoted by the judge, Dr Betts, when writing to the Assembly, recorded that when the Trustees did approach the CCW, they were told that the correct body to whom to apply for a licence was the Assembly under regulation 44(2)(e); this was the letter dated 30th September 2002 referred to in paragraph 33 of the judge’s judgment.  The Assembly did not seek to correct that advice and that is why matters have proceeded as they have.

12.	It was ultimately the submission of Mr Kingston that there is in fact some overlap between the regulations, and the fact that conservation is dealt with under regulation 44(2)(c) does not prevent in a particular case the conservation of the species being a matter of overriding public interest with beneficial consequences of primary importance to the environment under regulation 44(2)(e).  One key issue in the case is how far Mr Kingston is right about that.

13.	The judge in his discussion of the issues helpfully set out the planning context.  The 1994 regulations expressly deal with how planning applications, after the coming into force of the regulations, will deal with matters covered by the regulations.  In essence planning consent will not be given without a full assessment of the likely effect upon any “European site”.  By regulation 49 the competent authority may agree to the plan or project notwithstanding a negative assessment “if they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which subject to paragraph (2) may be of social or economic nature)”.   Paragraph (2) provides that where the site hosts a “priority natural habitat type or priority species” the reasons must be either “(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment or (b) other reasons which in the opinion of the European Commission are imperative reasons of overriding public interest”.   As the judge noted, this language seems to mirror regulation 44(2) (e) and (3)(a).  In this context it is “the plan or project” which the planning authority should conclude “must be carried out for imperative reasons of overriding public interest”, and that does not seem to envisage the plan or project being the preservation of a species.

14.	The regulations also provide for consents granted prior to the coming into force of the regulations to be reconsidered.  Regulations 54-59 apply regulations 48-53 expressly to reconsideration of planning permissions.  As the judge says (paragraph 87) it follows that when permission was given to the Trustees to quarry at Pen-yr-Henblas the planning authority was not required to consider the effect on the site under the 1994 regulations, but has the ability to do so pursuant to regulations 54-59.  The planning authority has not however, up until this stage, taken any steps to revoke the planning permission.

15.	The judge then dealt with the proper construction of regulation 39, and whether the Trustees would be committing an offence if they commenced quarrying and, as an incidental result, killed gcns or damaged or destroyed the breeding site of gcns.  As I have said, I do not think it right to express any final view as to the width of the regulation on which the Trustees rely.  The fact that it is arguable that they might not be committing an offence and the fact that the Trustees might therefore quarry and incidentally kill gcns and destroy the breeding sites of gcns seems to me all that it is necessary to record.   I think the judge put it correctly when he said that he was bound to approach the construction of regulation 44 with an understanding that the Directive and the regulations both recognise the possibility that a lawful operation could cause serious incidental harm to a protected species and the breeding sites thereof.

16.	It follows that whether it is the CCW when considering whether to grant a licence under regulation 44(2)(a) to (d) or the Assembly when considering whether to grant a licence under regulation 44(2)(e) to (g), they too would be bound to approach their consideration on the same basis.  For that reason (a) if the CCW were considering whether to grant a licence based on the purpose of conserving gcns under regulation 44(2)(c), it would not seem to be open to them simply to take the view that there was “a satisfactory alternative” of not carrying out that which the Trustees had planning permission to do; and (b) if the Assembly was considering whether to grant a licence under regulations 44(2)(e) to (g) it would not be open to them simply to say a satisfactory alternative would be not to carry out that which the Trustees had permission to do.

17.	I note that in their decision letter of 14th February 2003 the Assembly did not simply say the alternative is not to carry out that which the Trustees had permission to do, and I did not understand Mr Jarman to argue that it would be open to either regulation 44 decision maker to hold that the alternative of not doing that which the Trustees had permission to do was a “satisfactory alternative” under regulation 44(3)(a), and thus a complete answer to any application for a licence.

18.	But, all that said, unless the preservation of the gcns could be an “imperative reason of overriding public interest” within regulation 44(2)(e), the Assembly would have no jurisdiction to grant a licence under regulation 44.

19.	The question accordingly is – would the preservation of a species or some of a species, the subject of protection under the regulations be an “other imperative
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.

20. The judge’s reasoning as to why preservation of the species could provide a reason of overriding public interest commenced with a concern as to whether if the Trustees were right that might have the effect of the regulation 44 decision-maker being compelled “to treat protection of the species as an overriding public interest consequent upon the grant of planning permission” (see para 110).  He answered that anxiety with three points which developed his view as to whether preservation of the species could be an imperative reason of overriding public interest.

21.	The first point was linked with his view as to the proper construction of regulation 44(2)(c) and enabled him to refuse to construe regulation 44(2)(e) “on the assumption . . . that the public interest can never be represented by a need to protect the species itself” [para 113].  That may be so, but it does not follow that the licence being sought in this case was for “an imperative reason of overriding public interest.”

22.	His second point was linked with his view as to whether regulation 40(3)(c) provided a defence and also his view as to the proper construction of regulation 44(2)(c) as well as 44(2)(e).  He concluded that:-

“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.
23.	His third reason recognised that a regulation 44 decision-maker might have to weigh up planning considerations.  It was in this context the judge concluded at para 116:-
“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.”
24.	The real difficulty in this case is caused by the regulations providing for two different bodies considering whether to issue licences with their respective jurisdictions defined by reference to the different purposes for which the licences were required.  Article 16 of the Habitat Directive (as the judge pointed out) does not contemplate two different authorities, and in granting member states the right to “derogate” from the provisions of Article 12 “a system for the strict protection for the animal species listed…” identifies a variety of different purposes or circumstances.  They could as the judge recognised overlap, but, if one authority was considering the matter the fact that a purpose could fall within (a) or (b) or (c) etc would not matter.  
25.	At one time I considered the possibility that on the true construction of Article 16 it was only Article 16(1)(c) which provided the power to derogate where the purpose was to conserve a species.  If that had been so that would point powerfully in the direction of it being necessary to construe the words “imperative reason of overriding public interest” as including the purpose of conserving a species or even part of a species.  We asked for further submissions on that thought and I accept Mr Jarman’s submissions that Article 16(1)(a) would provide that power, and that it cannot be argued that the phrase “overriding public interest” must include conserving the species or part thereof.
26.	Mr Kingston’s basic submission, as re-emphasised in the further submissions, is that the fact that a purpose falls within one paragraph of Article 16(1) or one sub-regulation of regulation 44(2), does not preclude it falling within another.  There is, he emphasised, an overlap and I accept that under regulation 44(2) there are cases where the jurisdiction of the CCW and the Assembly might be said to overlap.  An application for a licence to relocate in order to conserve could be made on the basis that public health or public safety was at risk if the relocation did not take place.  Such an application could, I accept, be made under regulation 44(2)(e).  It must also follow that an application to conserve which was based on a case of imperative reason in the public interest could also be made under regulation 44(2)(e).  But, this apparent overlap may not be a true overlap.  The question would be what is “the purpose” which forms the basis of the application.  If the purpose relied on is public health, then an application to the Assembly under regulation 44(2)(e) would be necessary.  If the purpose is truly simply to “conserve” then the application can be to the CCW under regulation 44(2)(c).
27.	In any event, even if there is an overlap, that still does not answer the question whether the preservation of the species itself, or a part of the species, can amount to an “imperative reason of overriding public interest”.  Because I am inclined to feel that an application under regulation 44(2)(c), if made to the CCW should succeed, there is a temptation to attempt to construe regulation 44(2)(e) in a way which would also enable the application to the Assembly to succeed, particularly as it seems the Trustees were advised to make their application under that regulation.  But I have ultimately concluded that it is simply impossible to construe regulation 44(2)(e) in the way suggested by Mr Kingston.
28.	I have ultimately concluded that even if there can be an overlap, as suggested by Mr Kingston, the words “other imperative reasons of overriding public interest including those of . . . beneficial consequences of primary importance to the environment”  were not intended to cover the preservation of the species itself.  Article 16 and regulation 44 are derogating provisions.  All the purposes set out expressly in regulation 44(2)(e)(f) and (g) are purposes which, if they are carried out, will have or might have an effect on a species or their breeding sites.  I cannot accept that it was likely that by the general words “other imperative reasons of overriding public interest” it was intended to introduce as a purpose forming the basis for a licence, the preservation of the species itself.  “Imperative reasons” of “overriding public interest” seems to me to contemplate a project or plan, vital in the public interest, which will necessarily have an effect on protected wild animals or wild plants.
29.	What follows from that conclusion?  If the Assembly were to have jurisdiction to be persuaded to grant a licence, that could only have been on the basis of needing a licence for a purpose other than simply conserving gcns.  The only purpose that the Trustees could rely on was the existence of the planning permission and their interest in ultimately commencing their quarrying operations.  As already indicated, Mr Kingston has not sought to suggest that the grant of planning permission itself demonstrates that the quarrying provides a purpose which can be described as “an imperative reason of overriding public interest.”  For this reason the Assembly were entitled to take the view, independent of the planning authorities, as to whether the purpose on which the Trustees relied did provide an imperative reason of overriding public interest.  On that basis the challenge to their decision must be rejected.
30.	If I had otherwise been in favour of the respondents, I would not have concluded that there was anything in the timing point which was dealt with by the judge in para 118, but in the circumstances there is no need to deal with that point.
31.	For the reasons I have endeavoured to give I would allow the appeal.

Lord Justice Tuckey:		I agree.
Sir Charles Mantell:		I also agree.

Order: Appeal allowed with costs to be subject to detailed assessment if not agreed.
(Order does not form part of approved judgment)