ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Ian Dove QC (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE RICHARDS
| The Queen (on the application of Wye Valley Action Association Limited)
|- and -
The National Farmers' Union
James Pereira (instructed by Richard Buxton Environmental and Public Law) for the Respondent
Timothy Straker QC (instructed by National Farmers' Union) for the Intervener
Hearing date : 25 November 2010
Crown Copyright ©
Lord Justice Richards :
"Homme Farm is located approximately one kilometre to the south-west of Ross-on-Wye, on land enclosed along its western edge by the River Wye. The whole of the application site is located within the open countryside and within the Wye Valley Area of Outstanding Natural Beauty (AONB). The application site comprises 377 hectares of land that extends eastwards, from the River Wye, towards the B4234, the Ross-on-Wye Walford road.
The Council's Landscape Character Assessment identifies part of the site that comprises the floodplain of the River Wye as Riverside Meadows with the remainder of the site being described as Principal Settled Farmlands. The area is of significant landscape and built historic interest: Hill Court is a listed building and registered garden and Old Hill Court is a listed building and unregistered garden. There are a number of other listed buildings within the application site. In addition, Goodrich Castle, a Scheduled Ancient Monument (SAM), occupies a spur of land to the south, and overlooks the application site. The site abuts the River Wye Special Area of Conservation (SAC) and Site of Special Scientific Interest (SSSI). Parts of the site are within the floodplain of the River Wye. Various Public Rights of Way cross and provide views towards the application site."
"The application involves the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production)"
"The proposal was considered as to whether it was a project for the use of uncultivated land or a semi-natural area. I concluded that the land was, and had been, actively farmed and that it was therefore cultivated land and not a semi-natural area. Consideration was also given to whether the development was for intensive agricultural purposes. I concluded that the use of the land for the erection, taking down and re-erection of Spanish polytunnels on a rotational basis for the growing of soft fruit in the ground did not amount to an intensive agricultural activity."
The legal framework
"Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes"
where the area of the development exceeds 0.5 hectare.
"In the present case, the only serious contender for a category of sch. 2 development under which the application might fall is para. 10(b) of the schedule: infrastructure projects that are urban development projects. These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgment. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error; and in determining the meaning of the statutory expressions the concept of reasonable judgement as embodied in Wednesbury simply has no part to play. That, however, is not the end of the matter. The meaning in law may itself be sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately available. That approach to decision-making was emphasised by Lord Mustill, speaking for the House of Lords, in R v Monopolies Commission, Ex parte South Yorkshire Transport Ltd  1 WLR 23 at p.32G, when he said that there may be cases where the criterion, upon which in law the decision has to be made:
'may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational.'"
"The decision as to which specific agricultural practices and which types of areas fall within this project category is bound to vary between Member States, given the variety of land uses and agricultural practices in different parts of Europe. Some countries have included lists of relevant agricultural practices and habitats in national guidance documents in order to clarify how this category should be interpreted.
The term 'uncultivated land' is considered to include all areas that are not agriculturally managed at the time of assessment. However, land areas (fallow land, permanent pastures or meadows) that are temporarily taken out of production but are still counted as Utilised Agricultural Areas shall not be considered as 'uncultivated land'.
The definition of what constitutes semi-natural areas will vary from one Member State to the next, given that it relates to the adjudged value of different areas which occur throughout the EU. In this context, the term 'value' will certainly include the nature conservation value of an area, but will also include, where relevant, other valued environmental factors. For example, the concept of semi-natural areas may be associated with their landscape and/or archaeological value.
The term 'semi-natural' indicates that even areas where there has been some degree of human intervention, which prevents an area from being 'natural', will fall within this category, regardless of the moment in time when the human intervention took place. In many Member States, the term 'semi-natural' is likely to be applicable to large parts of the country area, although the extent of management will vary.
The definition of which areas should be considered 'semi-natural' may, in practice, depend upon a wider evaluation of the role of habitats and areas or features of high biodiversity interest in the wider countryside (such as ponds, small wetlands, ancient hedgerows, patterns of tree cover) by the competent authority or authorities responsible for nature conservation designations or biodiversity in the Member States. Other potentially relevant environmental factors may have to be considered by other authorities - those responsible, for example, for landscape designations or protection of archaeology. There is therefore some margin for discretion, but the main emphasis should be on identifying those areas which reflect natural conditions and which have some intrinsic nature conservation or other environmental value which would be lost by agricultural management proposals employed to permit intensification of agricultural practices.
One key indicator for potential habitat types that may fall within the concept of 'semi-natural areas' of high conservation value will be the habitat types and the habitats of species that are identified under the Habitats and the Birds Directives. Other designations, for example in relation to landscape features, will also be relevant ."
"19. Most semi-natural areas will qualify as uncultivated land. However, some semi-natural areas may have been subject to low levels of cultivation (e.g. some semi-natural hay meadows and wetland may have been subject to low levels of farmyard manure). The types of land considered to be semi-natural are described at Annex 1. In summary they are:
|Species-rich hay meadow (upland and lowland)
Unimproved grassland (including calcareous, acid and neutral grassland)
Coastal and floodplain grazing marsh
Scrub consisting of self seeded wild shrubs and trees
Fen, marsh and swamp
|Dwarf shrub heath (i.e. moorland and heathland)
Land above the tree-line i.e. usually over 600 metres above sea-level
Standing water and canals
20. Semi-natural areas are defined largely by the plants and wildlife they support (Annex 1 gives more detail). Often they will not have been subject to active cultivation for many years. However, they may in the last 15 years have been subject to:
low levels of physical cultivation (e.g. chain harrowing may have caused some disturbance of soil, but there will not normally have been any sub-surface cultivation such as ploughing, discing or heavy harrowing);
low levels of chemical cultivation (e.g. to replace nutrients lost through hay-cutting or water leaching, as often happens in the traditional management of semi-natural meadows and wetland)."
"All 'Arable and Horticulture' and 'Built-up areas and gardens' are excluded from the semi-natural habitat definitions."
The deputy judge's judgment
"37. In my view, the starting point in this connection is that in this context 'natural' means untouched by man. It is well known that most of the landscapes of England have been subject to some extent or another to the hand of man artificially denaturing them through agriculture or through technological activity associated with settlement of the landscape. Semi-natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area.
38. This can be gauged by the statutory and other designations to which the land may have been made subject. It may include landscape and archaeological elements which, although man made, have, through the passage of time, become naturalised into the area and, therefore, valued as part and parcel of its natural environmental assets. Once more, the extent to which these landscape and archaeological elements are prized, and therefore contribute to whether or not an area is semi-natural, can be measured by the environmental designations which they have attracted. Man's intervention in such areas may well be evident, but it will not have spoilt, and may even have complemented, the natural qualities which give the area its environment value.
39. During the course of the argument, reliance was placed by the defendant upon the fact that the land was, and still is, cultivated, and that this should have an impact on whether the land is semi-natural. Obviously, the fact that there has been agricultural cultivation is a relevant factor, but it cannot, in my judgment, be determinative, because the language of the 1999 Regulations is 'uncultivated land or semi-natural areas'. That clearly contemplates that semi-natural land may be cultivated and, therefore, the fact of cultivation cannot remove land from this category.
40. Whilst the guidance to which I have referred in relation to the 2006 Regulations refers to cultivation at a low level, that does not undermine the validity of the point I have just made. At Stage A the fact that land has been cultivated does not automatically exclude it from the status of being semi-natural. This points up what appears to be, to my mind, a material misdirection in the Council's screening opinion, since it appears to suggest that because the land is already cultivated it is not listed in Schedule 2. That approach altogether excludes what is contemplated by the words of Schedule 2, that there could be a Schedule 2 project on semi-natural land which had been the subject of cultivation.
41. To apply this approach to the present case the question of semi-natural area needs to be assessed not simply by reference to the appeal site but to the site in its context. A site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled ancient monument, to my mind clearly comes within the definition of "semi-natural area" as a matter of law. It is an area which has within it a significant number of designated sites, or areas, some of which are overlapping, and which are redolent of the high quality natural environment of the kind described in my earlier exposition of the term 'semi-natural'."
(1) whether, as found by the deputy judge, the council erred in law in deciding by its screening opinion that the development was not a project "for the use of uncultivated land or semi-natural areas for intensive agricultural purposes" within paragraph 1(a) of Schedule 2 to the 1999 Regulations; and
(2) whether the reasons given by the council for its screening opinion were inadequate in law.
"Uncultivated land or semi-natural area": submissions
"Uncultivated land or semi-natural areas": discussion
Whether the reasons were adequate
"56. It does not follow, however, from Directive 85/337, or from the case-law of the court , that a determination not to subject a project to an EIA must, itself, contain the reasons for which the competent authority determined that an assessment was unnecessary.
57. It is apparent, however, that third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary.
58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority's screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
59. In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request
60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made."
Lady Justice Smith :
Lord Justice Rix :