QUEEN’S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
on the application of
AGGREGATE INDUSTRIES UK LIMITED
- and -
(2) THE SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS
| THE QUEEN|
on the application of
AGGREGATE INDUSTRIES UK LIMITED
- and -
(2) THE SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRS
Crown Copyright ©
(i) that the Council’s decision was made in breach of section 6(1) of the Human Rights Act 1998 (“the HRA 1998”) and Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (i.e. “The Right to a fair Trial”);
(ii) that the Council’s decision was made in breach of Aggregate Industries’ legitimate expectations; and
(iii) that there was no justifiable basis for the Council’s decision.
(1) English Nature. The background, establishment, constitution and statutory functions of English Nature are succinctly and uncontroversially summarised in paragraphs 4.1 to 4.14 of the first witness statement of English Nature’s Director of Operations, Dr Andrew Brown, dated 26th September 2001, from which it is convenient to quote the following passages:
“a. The background to the establishment of English Nature
4.1 Since 1949 there has been a specialist nature conservation body to provide expert advice, and to discharge certain statutory functions of a specialist nature, in relation to nature conservation.
4.2 The Nature Conservancy was a body established by Royal Charter on March 23rd 1949 with the functions of providing scientific advice on the conservation and control of the natural flora and fauna of Great Britain, establishing and managing nature reserves and the organisation and development of research and scientific services related thereto. …
4.3 The Natural Environment Research Council (NERC) was established pursuant to the Science and Technology Act 1965 and, by virtue of section 3(3) of that Act, took over the activities of the Nature Conservancy, which surrendered its Royal Charter and became a committee of the NERC.
4.4 The Nature Conservancy Council Act 1973 established the Nature Conservancy Council as an independent body to replace the committee of NERC, known as the Nature Conservancy. …
4.5 The Nature Conservancy Council for England was created by the Environmental Protection Act 1990. By virtue of section 73 of the Countryside and Rights of Way Act 2000, it is now known by its more familiar name of English Nature.
b. The constitution of English Nature
4.6 The Council, known as English Nature, is a statutory body corporate. It is not to be regarded as a servant or agent of the Crown.
4.7 The Council is required to have not less than 10 nor more than 14 members. They are appointed by the Secretary of State. In practice they are selected for their particular experience, knowledge and expertise in various areas relevant to nature conservation through a competitive process. … As will be apparent (from the current list, members of the Council) … have considerable expertise and experience in a range of relevant fields, including botany, biology, marine biology, and geology.
4.8 Council members are appointed for a period of 3 years. They have security of tenure during that period and may only be removed by the Secretary of State in the limited circumstances set out in paragraph 6 of Schedule 6 to the 1990 Act.
4.9 The Council of English Nature meets at least quarterly. Some meetings are held in Peterborough, others are held throughout England at locations where Council can meet landowners and representatives of different organisations and make appropriate site visits. Since 16th May 2001 meetings of Council have been held in public.
4.11 English Nature has some 800 members of staff. … Local team officers … advise on protected species under Part 1 of the Wildlife and Countryside Act 1981, and discharge English Nature’s responsibilities as a statutory consultee in various contexts. … Other officers are involved in specialist work on matters such as ornithology, marine and freshwater ecology, palaeontology and genetically modified organisms.
c. English Nature’s statutory functions
4.12 In addition to its functions in relation to SSSIs … English Nature has a number of other functions. These include the establishment, maintenance and management of nature reserves, the provision of advice to the Secretary of State on the development and implementation of policies relating to nature conservation, the provision of advice and dissemination of knowledge about nature conservation and the commissioning and support of research relevant to those matters. English Nature has also assumed various statutory functions previously vested in the Nature Conservancy Council.
4.13 In discharging its nature conservation functions English Nature has a duty to take appropriate account of actual or possible ecological changes (section 131(2) of the Environmental Protection Act 1990).
4.14 The Secretary of State has a power of direction in relation to some of English Nature’s functions (under section 131(4) of the Environmental Protection Act 1990). … this power of direction does not extend to the notification of SSSIs. …”
“(1) Where (English Nature is) of the opinion that any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features, it shall be the duty of the Council to notify that fact -
(a) to the local planning authority in whose area the land is situated;
(b) to every owner and occupier of any of that land; and
(c) to the Secretary of State.
(3) A notification under subsection (1) shall specify the time (not being less than three months from the date of the giving of the notification) within which, and the manner in which, representations or objections with respect to it may be made; and the Council shall consider any representation or objection duly made.
(4) A notification under subsection (1)(b) shall also specify -
(a) the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; and
(b) any operations appearing to the Council to be likely to damage that flora or fauna or those features,
and shall contain a statement of the Council’s views about the management of the land (including any views the Council may have about the conservation and enhancement of that flora or fauna or those features).
(5) Where a notification under subsection (1) has been given, the Council may within the period of nine months beginning with the date on which the notification was served on the Secretary of State either –
(a) give notice to the persons mentioned in subsection (1) withdrawing the notification ; or
(b) give notice to those persons confirming the notification (with or without modifications).
(6) A notification shall cease to have effect -
(a) on the giving of notice of its withdrawal under subsection (5)(a) to any of the persons mentioned in subsection (1), or
(b) if not withdrawn or confirmed by notice under subsection (5) within the period of nine months referred to there, at the end of that period.”
a. one of them has, after service on him of the notification, given English Nature written notice of a proposal to carry out the operation specifying its nature and the land on which it is proposed to carry it out; and
b. one of the conditions specified in section 28E (3) is fulfilled.
“5.13 English Nature requests that representations should be made in writing … the approach taken by English Nature with regard to the process of considering representations is flexible, tailored to the particular nature of the site, and the number and types of ownership/occupation of the land comprised in it. … In some cases (as in this) officers of English Nature will meet those involved to explain the basis on which the site was notified and to receive any oral representations which they may also wish to make.
5.14 The officers of English Nature prepare a report to the Council, which will contain their recommendations whether or not the notification should be confirmed and whether or not any modifications should be made. The report generally contains the site citation, a site map, a list of operations likely to damage the features of special scientific interest, a brief summary of objections and representations, maps indicating the land holdings of the parties who made objections, summaries of meetings and correspondence with objectors, the officers’ recommendations and copies of the correspondence containing those objections, with replies and officers’ notes of meetings and oral representations.
5.15 This report is prepared and supplied to the Council members usually about two weeks in advance of the Council meeting. It is made available to any owners/occupiers who request it. Representations or objections made in the intervening period are either copied to the Council members in advance or tabled at the meeting itself.
5.16 Since May 2001, Council meetings have been conducted in public.
5.17 In June 2001, the Council of English Nature agreed to introduce on a pilot basis a procedure to afford those notified under Section 28(3) an opportunity to make oral submissions at Council meetings when decisions are being taken upon whether or not to confirm SSSIs. The procedure was first implemented at the Council’s meeting on 11th July 2001.
5.18 The Council considers the officers’ report and accompanying material, together with any further written representations or objections made after production of the report, and has regard to any oral submissions made at the meeting.
5.19 The exercise of deciding in the light of all the material whether or not the notification of the site should be confirmed with or without modification is of a technical and specialist nature for which the Council members are specially qualified. It is a matter of record that Council does not always follow the recommendations put forward by its officers. In a number of cases they have modified the notification and they have occasionally made a decision to withdraw notification.”
“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 … 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.”
“A directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”
“6.4 The responsibility for classification of Special Protection Areas is that of Government. English Nature assists the Government in the task of identifying areas suitable for classification as SPAs. English Nature undertakes a scientific assessment of all possible sites, including the identification of boundaries, and submits this to the relevant Government Department. Once the Department has indicated that it is content with the proposals the site becomes a “potential SPA” or “pSPA”. English Nature is then requested by the Department to undertake a consultation process with owners/occupiers and other interested parties after which a consultation report is submitted by English Nature to the Department. The Department then takes a decision on whether or not to classify the site.”
(i) A4 “All sites of … international importance on land (including … Special Protection Areas (SPAs) are notified as SSSIs”; and
(ii) C8 “on land, SPAs … will already have been notified to authorities as SSSIs”;
“1. The Convention Rights
(1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in –
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, …
as read with Articles 16 to 18 of the Convention
3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights.
4. Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
5. Right of Crown to intervene
(1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with the rules of court.
(2) In any case to which subsection (1) applies –
(a) a Minister of the Crown …
is entitled …to be joined as a party to the proceedings.
6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings
but only if he is (or would be ) a victim of the unlawful act.
8. Judicial remedies(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
Right to a fair trial
1. In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
THE FIRST PROTOCOL
Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
“Bramshill Site of Special Scientific Interest comprises a series of shallow pools occupying former gravel workings. The site is exceptional in that the habitat is recent in origin, yet rich in species. It supports a remarkably rich flora, including many nationally and regionally rare species, together with a very rich dragonfly fauna. The surrounding areas of open “heathy” vegetation support a diverse bird fauna characteristic of heathland habitats, including a number of protected species.
The whole area was formerly heathland. Planted with Scots pine … in the 1920s, the trees were cleared in the late 1960s and 1970s, allowing valley gravels to be extracted during the subsequent years. The removal of the gravels has exposed … clays that are relatively poorly draining. …
The impervious clays have also allowed the formation of a series of shallow pools … The pools form the core of the overall site: …The … margins support a rich flora …
The ponds … constitute one of the most important dragonfly sites in Hampshire …
The whole area of former plantation (of which the SSSI is a major part) supports breeding populations of a number of birds characteristic of heathland and coniferous forest. These include woodlark … hobby … nightjar … and crossbill …”
“At its meeting on 29 June 1994, the Council of English Nature decided not to confirm notifications of extensions to SSSIs at Bramshill … The extensions consisted mostly of managed conifer plantations up to 40/50 years old and planted with Scots or Corsican Pine. Areas cleared and occupied by the earlier stages of the rotation, up to 5-10 years old, can provide nest sites for Woodlark and Nightjar, Annex I species in the European Birds directive. …
Council discussed at length the principles and issues involved in interpreting the application of the Guidelines for the selection of biological SSSIs to this case. The SSSI Guidelines refer only briefly to Special Protection Areas.
In reaching their decision Council took account of a number of factors affecting the circumstances under which blocks of conifer plantation might be regarded as being of special interest.
- In this case extensive areas of conventional plantation occupying much of each site could not under any circumstances be regarded as “special”, by virtue of plant species or vegetation classification. The particular interest of those areas now supporting Annex I birds is transitory in time and space, i.e. will no longer provide favourable habitat for these bird species after 5-10 years as the growing tree crop closes over. Furthermore these areas have no other special interest.
- Council was not convinced that, in this particular instance, notification as an SSSI is the most appropriate mechanism to discharge responsibilities for these Annex I species. Council agreed to seek assurances from the woodland managers that the existing management regimes would continue and this has now been confirmed by Forest Enterprise.
- In reaching decisions on special interest, Council is determined to be consistent and objective. It is necessary to consider any decision in the light of possible legal challenge, particularly in the form of judicial review, against which Council must assure itself of the soundness of its decision.
Council, therefore, decided not to confirm the extensions to the proposed notification at Bramshill …”
“As appears from these documents, Council did not doubt the importance of the Annex 1 bird populations. The Council’s misgivings centred on the fact that the particular interest of those parts of the extended area then supporting Annex 1 birds was transitory in time and space as rotational management of the plantation continued.”
“2. The two options open to English Nature are:
a. to agree to the request, designate the areas as SSSI and make these sites an exception by virtue of the international importance of the bird population they support;
b. to maintain the previous position that because the special interest is to some extent transitory in time and space the areas should not be SSSI.
Maintaining the decision not to confirm these areas as SSSI will, in all likelihood, attract a Ministerial request to do otherwise as the Government is obliged to designate all areas which qualify as SPA and it is DETR policy for all SPA to be confirmed as SSSI. There are a number of reasons for acceding to this request, including the now greater clarity of the legal obligations under the Birds Directive, several decisions in the European Court of Justice, advice from the EC and improved knowledge of the three species requirements.
5. Council is invited to:
a. note the request from DETR to consider the inclusion of areas of temporary habitats which support rare or vulnerable birds as SSSI;
b. approve the designation of the areas as SSSI in order to support the SPA designation.”
“This site is notified for a series of shallow acid ponds and associated mire, which support a rich assemblage of dragonfly and damselfly, and rotationally felled conifer plantation, which provides habitat for internationally important populations of nightjar, woodlark and Dartford warbler.”
“Conifer plantation provides breeding habitat for woodlark and nightjar within clear fell and young plantations created by the rotational management of the plantations together with adjacent areas of heathland which support breeding Dartford warblers.
DETR has a commitment to classify all SPAs during 2000. This necessitates the notification of temporary habitats in the Thames Basin Heaths SSSIs.”
“This is a list of all operations which could possibly damage this site of special scientific interest. The list covers the whole site although some of the operations may be damaging only on parts of the site or at particular times of year or if carried out in particular ways.
The list of operations is not a list of prohibited activities. However, the law requires you to give written notice to English Nature before any of these operations is undertaken on your land. This allows us to discuss the proposals with you and consider their effects on the special interest of the site. In some circumstances the proposals will be damaging and in other circumstances they will be beneficial.
Ref. No. Type of Operation
1. Cultivation, including ploughing, rotovating, harrowing and re-seeding.
2. Grazing and changes in the grazing regime …
3. The introduction of stock feeding …
4. Mowing or cutting vegetation …
5. Application of manure, slurry, liquor, fertilisers and lime.
6. Application of pesticides, including herbicides …
7. Dumping, spreading or discharge of any materials.
8. Burning and alterations to the pattern of frequency of burning.
9. Release into the site of any wild, feral, captive bred or domestic animal*, plant, seed or micro-organism …
10. Killing, injuring, taking or removal of any wild animal … including pest control …
11. Destruction, displacement, removal or cutting of any plant or plant remains including tree, shrub, herb, hedge, dead or decaying wood, moss, lichen, fungus, leaf-mould, turf and peat.
12. Tree and/or woodland management and alterations to tree and/or woodland management (including planting, felling, pruning …).
13a. Drainage …
13b. Modification of the structure of water courses …
14. Alterations to water levels … (including irrigation …).
15. Infilling or digging of ditches … drains …
20. Extraction of minerals, including … sand and gravel …
21. Destruction, construction … of roads, tracks, walls, fences … or the laying, maintenance or removal of pipelines and cables, above or below ground.
22. Storage of materials.
23. Erection of permanent or temporary structures …
26. Use of vehicles.
27. Recreational activities.
28. Game management and hunting practices …
* “animal” includes any mammal, reptile, amphibian, bird, fish or invertebrate (including honey bees).”
“I would like to make clear that whilst I have quoted these papers in the notification information as supporting evidence for the notification of “temporary habitat”, Council have not based their decisions on this research. The Council paper GC POO 16 refers to “an increase in knowledge” in section 3.2. There is no doubt that the knowledge of the ecology and requirements of woodlark and nightjar in “temporary habitat” has increased since 1994 as a result of research such as this … As I indicated in the notification package, it is my opinion that the continued research into this area has given English Nature enhanced confidence to manage “temporary habitat” which is commercial in nature, but internationally important for wild birds.”
“4.35 It has finally become clear after many exchanges of correspondence and meetings with English Nature that there may not now actually be any new information upon which the decision to include temporary habitats as SSSIs was based. None of the scientific literature was used, nor did any of the site-specific information, i.e. the surveys, indicate a change in the status of any of the species over the situation in 1994.
4.36 Without any “new knowledge” to consider then a change in position by the Council cannot be based on scientific grounds.”
“9.7 There followed a period of consultation during which there was substantial communication between English Nature officers and (Aggregate Industries). I produce as exhibit AB9 a list of the letters and meetings which were exchanged and held between 20th October 2000 and 11th July 2001. (Aggregate Industries’) advisers, Epcad, also produced two reports which were submitted to English Nature in February and April 2001.
9.8 English Nature’s officers prepared their report for consideration by Council with respect to the Bramshill site, recommending that the notification be confirmed with a small modification to the citation. I understand that the report was sent to Council members on 4th July 2001. I produce a copy of the report as exhibit AB10.”
It can also be seen from Exhibit AB10 that the first page of the report, which had been prepared by English Nature’s officers for the Council, made it abundantly clear that the officers’ recommendation to the Council of English Nature was that the SSSI in question should be confirmed.
“12. I represented (Aggregate Industries) at the meeting on the 11th July 2001 and was allowed ten minutes in which to address the Council orally and inform them of … (Aggregate Industries’) objection to the notification and to the manner in which (English Nature) was proceeding with regard to the confirmation or withdrawal of the notification. On arrival, I was presented with a large document upon which (English Nature) proposed to and did rely in the course of its submissions to the Council. I was not given any time to familiarise myself with its contents. During the meeting I saw new information being produced to the Council on which (Aggregate Industries) and myself were not able to comment.”
“65. … the issue in these three appeals is whether it is compatible with the Human Rights Act 1998 for Parliament to confer upon the Secretary of State the power to make decisions which affect people’s rights to the ownership, use or enjoyment of land …
68. All three cases involve general social and economic issues. They concern the rights of individuals to use, enjoy and own their land …”
“The applicability of Article 6 depends on whether there was a dispute over “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law and, if so, whether this “right” was of a “civil” character within the meaning of Article 6(1) (see the Oerlemans -v- the Netherlands judgment of 27 November 1991 … paragraphs 45-49). Article 6(1) only applies if the right is civil in character (see the Benthem -v- the Netherlands judgment of 23 October 1985 … paragraph 32). The “dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play (see the Allan Jacobson -v- Sweden judgment of 25 October 1989 … paragraphs 66-67, and the Masson and Van Zon -v- the Netherlands judgment of 28 September 1995 … at paragraph 44).”
“150. It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly affects civil rights and obligations and is of a genuine and serious nature.”
“The opening words of article 6(1) are: “In the determination of his civil rights and obligations or of any criminal charge against him …” Here again a broad interpretation is called for. The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations. In Le Compte, Van Leuven and De Meyere 4 EHRR 1, paragraph 46 the court observed: “it must be shown that the “contestation” (dispute) related to “civil rights and obligations”, in other words that the “result of the proceedings” was “decisive” for such a right.” The dispute may relate to the existence of a right, and the scope or manner in which it may be exercised (Le Compte, at paragraph 49, also Balmer-Schafroth -v- Switzerland (1997) 25 EHRR 598). But it must have a direct effect of deciding rights or obligations (my emphasis).”
In my opinion, it is clear from the context in which they are used that the words “the decision is directly to affect”, as used in the fourth sentence, are intended to have the same meaning as “direct effect of deciding”, as used in the last sentence, i.e. the same as “directly decisive”. Accordingly, I have approached Mr Fookes’ submissions on the same basis, i.e. that where he used an expression such as “directly affected”, it should be taken as having the same meaning as “directly decisive”.
(i) in relation to Aggregate Industries’ rights in respect of the land, did the decision to confirm the 2001 SSSI remove, diminish or restrict any of those rights?
(ii) in relation to Aggregate Industries’ obligations in respect of the land, did the decision complained of impose or increase such obligations?
Mr Fookes submitted that if the answer to either of those two questions was “Yes”, then the decision to confirm the 2001 SSSI did constitute a determination of Aggregate Industries’ civil rights and/or obligations and that, accordingly, Article 6(1) was engaged.
(i) the effect of section 28E of the 1981 Act (see above), which requires the owner or occupier of the land to apply for consent to carry out any of the operations listed within the notification, even where such operations are the subject of an existing planning consent or other appropriate licence (which is the position in the present case with regard to mineral extraction and tree felling);
(ii) the effect of sections 28J, 28K, 28L and 28N of the 1981 Act (see above), pursuant to which English Nature can, following confirmation of an SSSI, impose a management scheme on the land for the conservation and/or restoration of the SSSI and is empowered to take appropriate measures to enforce such a scheme, including the service of a management notice and compulsory acquisition of all or part of the land in question; and
(iii) the fact that various policies in the relevant Structure and Local plans (hereafter referred to collectively as “the development plan”), which are very restrictive of any development of the site, have now been “triggered” by confirmation of the site as an SSSI (see the Hampshire County Structure Plan 1996-2011 Policy E10 and the Hart District Council Local Plan Policy CON1 (viii)), an aspect of the matter which was described by Mr Fookes as the “primary practical effect” of the decision to confirm the 2001 SSSI (see paragraph 31 of Mr Fookes’ written skeleton argument).
“45. The Government submitted that Article 6(1) was not applicable in this case.
Referring to the case law of the Court they did not accept that there was a dispute of a genuine or serious nature because the applicant was not hindered in using his property for grazing cattle in the same manner as he did before the designation order was made. Indeed the explanatory notes of the order explicitly stated that long-standing use of agricultural land could continue normally. … Accordingly, it could not be argued that the outcome of the dispute was decisive for the applicant’s rights, which it only affected remotely or tenuously.
In the Government’s submission such a dispute would only arise, inter alia, when an authorisation was refused or when compensation was denied.
46. The Court is not persuaded by this reasoning. In the first place, there existed a dispute concerning the lawfulness of the designation order. In the second place, the legal consequences of the designation order were that the applicant was no longer free to cultivate his land as he saw fit and was required to seek an authorisation from the Minister for various purposes, for example if he sought to alter or intensify existing use or carry out certain farming activities such as clearing or ploughing the land or using herbicides. … There thus existed a serious dispute in the present case concerning the resultant restrictions on the applicant’s use of his property. …”
“The list of operations requiring consent is essentially a mechanism for consultation between the owner or occupier and English Nature in the management of the SSSI. It should not be regarded as a set of restrictions or prohibitions.”
(i) that the consent procedure itself is Article 6(1) compliant in that there is an appeal to the Secretary of State by a procedure which is, in all material respects, the same as that considered and approved by the House of Lords in Alconbury; and
(ii) that any potential for conviction of an offence under section 28E of the 1981 Act (i.e. for carrying out relevant works without consent) is subject to certain specified statutory defences and to there being a trial in the Magistrates’ Court, which is a fully Article 6(1) compliant tribunal.
“… development which is likely to harm the nature conservation interest of … Sites of Special Scientific Interest … will not be permitted, unless the need for development is shown to outweigh the adverse impact, taking into account the protection given to the designation concerned in legislation or government guidance.”
“Where, in making any determination under the planning Acts, regard is to had to the development plan, the determination shall be in accordance with the plan unless material considerations indicate otherwise”(my emphasis).
“But at least from the time when a power (vested in an administrative or other body) has been exercised and objection is taken to that exercise the existence of a dispute for the purpose of article 6(1) can be identified.”
In due course that dispute was determined by the Council’s decision to confirm the 2001 SSSI.
“(Aggregate Industries) is the owner of land and (it) is entitled to the enjoyment of that land. The confirmation of an SSSI narrows the scope of that enjoyment and creates both positive and negative conditions upon which its enjoyment becomes contingent.”
“…There thus existed a serious dispute in the present case concerning the resultant restrictions on the applicant’s use of his property.”
“The fact that it exercises judicial functions … does not suffice. According to the Court’s case-law, use of the term “tribunal” is warranted only for an organ which satisfies a series of further requirements – independence of the executive and of the parties to the case, duration of its members’ term of office, guarantees afforded by its procedure – several of which appear in the text of Article 6(1) itself.”
“It was not disputed in the present case that a Board of Visitors, when carrying out its adjudicatory tasks, is a “tribunal established by law”. It is, in fact, clear that the relevant English legislation confers on Boards a power of binding decision in the area in question and the dicta in the St. Germain case show that this is a judicial function. Again, the word “tribunal” in Article 6(1) is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country.”
“In the present case the fact that the defendant council will be deciding on its own application for planning permission in respect of a development it is promoting on its own land is plainly sufficient to establish a lack of independence and impartiality for the purposes of Article 6 … Here … the question is whether compliance in principle with Article 6 is achieved by the availability of Judicial Review.”
“… the Court cannot confine itself to looking at the consequences which the subordinate status of the rapporteur vis-à-vis the Transactions Officer might have had as a matter of fact. In order to determine whether a tribunal can be considered to be independent as required by Article 6, appearance may also be of importance.
Where, as in the present case, a Tribunal’s members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, viv-a-vis one of the parties, litigants may entertain a legitimate doubt about that person’s independence.
There was accordingly a violation of Article 6(1).”
“On the hearing of an appeal against a decision of licensing justices under the Licensing Act 1964 the Crown Court shall consist of a judge sitting with four justices, each of whom is a member of a licensing committee appointed under Schedule 1 to that Act and two (but not more than two) of whom are justices for the petty sessions area in which the premises to which the appeal relates are situated (my emphasis).”
Laws LJ, with whose judgment Crane J. agreed, stated that the mandatory inclusion of two licensing justices from the petty sessions area in which the relevant premises were situated meant that:
“32. … Members of the licensing committee sitting in the Crown Court are expected to pass objective judgment on their colleagues who are members of the same committee which made the first instance decision. They may be asked to order costs against them. The electorate is the whole petty sessional bench, therefore including all … past and potential colleagues on the licensing committee.”
“36. I consider, then, that these arrangements are in principle not consistent with Article 6(1). I emphasise that I accept that the standard set by Article 6(1) is not fixed. What is required will vary according to context. But in the present case, there is a want of the objective appearance of impartiality and independence which cannot be sidelined or set aside.”
“28. The Strasbourg jurisprudence is clear and consistent. Purely by way of example, the Court stated in Findlay (1997) 24 EHRR 221 at paragraph 73:
“…in order to establish whether a tribunal can be considered “independent”, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of “impartiality” … As to the question of “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and impartiality are closely linked …”
“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”
“In my judgment there are not here sufficient objective guarantees, visible as it were to the outside world, so as to clothe the (Council’s) role under (s.28) with the necessary qualities of independence and impartiality, if it is looked at in isolation. … I have already said that this is a question of appearances; but this is a context in which appearances are very significant.”
(i) the tribunal determining civil rights and obligations need not itself be independent, provided that its decision is subject to review by an independent and impartial tribunal of “full jurisdiction” as the nature of the case requires;
(ii) such full jurisdiction does not require a comprehensive review of the merits of the decision if that decision is administrative in character;
(iii) Judicial Review will provide an acceptable level of review provided that the body which took the decision reviewed is electorally accountable; and
(iv) where the decision involves findings of fact which are in dispute, then either there must be an independent fact-finder to advise the decision-maker (as with an inspector in the planning context) or, failing that, review by a court equipped to consider the full merits of the decision in question.
(i) Even if the Council’s decision was properly to be regarded as entirely one of policy or expediency, it had not been taken by a body which is electorally accountable. In those circumstances, the High Court’s powers of judicial review were inadequate to render the overall composite process Article 6(1) compliant.
(ii) It was Aggregate Industries’ primary case that the Council’s decision-making process did involve fact-finding and/or dealing with various disputed issues of fact, the latter having been set out in Epcad’s report in February 2001 and summarised in a letter dated 28th September 2001 from the solicitors acting for Aggregate Industries, as follows:
“Amongst the facts in dispute between the parties are the following:-
1. What criteria has (sic) been applied and how
2. (a) Your clients claim there is new habitat or species data which provides a significant change from the situation in 1994. This is disputed by (Aggregate Industries)
(b) Your clients also claim that there is new bird data or knowledge which provides a significant change from the situation in 1994. Again, this is disputed by our clients.
(c) Your clients claim that there is new knowledge which would lead to a change in the position with regard to designation of temporary habitat. Our clients dispute this.
These issues are clearly set out at paragraph 1.18 of the objection by EPCAD …
The nature of the factual dispute is elaborated at paragraphs 2.21 to 2.30 of that report. The dispute over the proper interpretation of information on vascular plants is set out at paragraphs 2.31 to 2.44 and summarised at paragraph 2.45 to 2.46. …
The factual dispute in relation to bird data is set out and elaborated at section 3. The dispute in relation to new knowledge with regard to the designation of temporary habitat is explained at section 4.”
However, in making its findings of fact and/or dealing with the disputed issues of fact, the Council was not advised by an independent fact-finder (or quasi-inspector) as was required in such circumstances and thus the necessary “quasi-judicial” safeguards were not in place during the decision-making process.
(iii) Aggregate Industries were deprived of a fair trial because English Nature failed to adopt a properly safeguarded fact-finding procedure for the purposes of its determination of the dispute as to whether the SSSI should be confirmed; in particular, there was no inspector or other independent fact-finder to conduct the investigation into the various disputes of fact, there were no proper rules of evidence and equality was not maintained between the parties because, whereas Aggregate Industries was limited to ten minutes of oral submissions, English Nature’s officers were not similarly constrained.
(iv) The High Court’s powers of judicial review were insufficient to enable it to consider the full merits of the Council’s decision to confirm the 2001 SSSI so as to make good the shortcomings of English Nature’s procedures as outlined in (ii) and (iii) above.
“31. … The approach in Strasbourg to cases where a first instance decision-maker does not of itself satisfy Article 6(1), but it is claimed that the defect is as it were cured by a right of appeal to or review by an independent court, is to ascertain whether in the circumstances the court possesses what has been called “full jurisdiction”. The genesis of this expression is I think to be found in Albert and Le Compte v. Belgium (1983) 5 EHRR 533. That was a case in which doctors suspended from practice by a disciplinary tribunal complained of violations of Article 6(1). It is convenient to refer to the relevant passage as it is quoted by Lord Hoffman in Alconbury, where it is followed by reasoning to which with respect I would attach considerable importance in the context of the present case:
“86. In …Albert and Le Compte v Belgium (1983) 5 EHRR 533 … the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of Article 6(1) (e.g. because they were not “established by law” or did not sit in public):
“None the less, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).”
87. The reference to “full jurisdiction” has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with Article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that “full jurisdiction” does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.
88. This emerges most clearly from the decisions on the English planning cases … But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v. Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Voralberg. The appropriate government committee heard their objections but confirmed the order. They appealed to the administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not “independently assess the merits and the facts of the case”, it did not have “full jurisdiction” within the meaning of the Albert and Le Compte formula. The European court said, at paragraph 32, that its jurisdiction was sufficient in the circumstances of the case, “Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on the grounds of expediency and to the nature of the complaints made by the Zumtobel partnership.”
“32. Later in his speech in Alconbury Lord Hoffman referred to the case of Bryan v UK (1995) 21 EHRR 342, and in particular to the opinion of Mr Nicholas Bratza (as he then was) in the Commission:
Lord Hoffman proceeded to point out that Mr Bratza’s opinion had influenced the decision of the Court in Bryan, which said in paragraph 45 of the judgment:
“…in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.”
“37. These decisions … seem to me to reflect an important truth about the relationship between the “first instance” decision and the decision of the court on appeal or review, in this class of case where it is said that the later court process guarantees Article 6 compliance where that is not satisfied by the earlier determination. We have seen that in such cases the later court must possess “full jurisdiction” (Albert and Le Compte), and that this means “full jurisdiction to deal with the case as the nature of the decision requires” (Alconbury paragraph 87). But what “the nature of the decision requires” is by no means limited to a consideration of the question whether, in light of the subject-matter of the case, a court compliant with Article 6 standards must possess the power to investigate and decide the facts for itself. Assuming only that in any particular milieu disputes of fact may arise, it is necessary also to confront the question whether the “first instance” decision-maker – internal review, Review Board, whatever it may be – is established and constituted in such a way that it may be expected to arrive at fair and reasonable decisions. That may be a live and real question even though, for want of sufficient independence, or publicity, or any other factor, such a first instance decision-maker does not satisfy Article 6. Its failure to meet the Article 6 standards by no means closes off the relevance of its processes for the overall judgment that has to be made which takes account also of the second stage review or appeal in an independent court.
39. Now I may gather the threads together. We are dealing with a state of affairs in which a first instance decision-maker, whose determination touches the citizen’s civil rights, does not meet the standards imposed by ECHR Article 6(1). Such a state of affairs arises within a setting or regime created by Act of Parliament. There will generally be access to a court by way of review or appeal against the first decision. It may be provided … by the Act itself. If the Act is silent, then at common law recourse may be had to the judicial review court. If the Act gives a right of appeal to a court on the merits, factual as well as legal, Article 6 is plainly complied with: such a court on any view possesses “full jurisdiction”. But the commoner situation is where the right of appeal is on law only. Subject to the remedies provided for (and to any points of procedure), that will be equivalent to judicial review. The critical question, then, is this: in these two-tier cases, what are the conditions which determine whether the court process at the second tier, taken with the first instance process, guarantees compliance with Article 6(1)?
40. As I have shown, the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme’s subject matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme’s author.
41. I intend the whole of this approach to be consonant with Lord Hoffman’s reasoning in Alconbury … and I believe it to be so. And what was said by Lord Hoffman in Alconbury at paragraph 79 … is, I think, reflected by the circumstance that civil rights are more likely to be directly engaged in a scheme where the finding of fact is a general or systematic feature; but where judgment, discretion, and issues of policy predominate, the scheme is more likely to be one in which decisions made under it “determine or affect” civil rights.
43. I should indicate moreover that, although there were sharp issues of primary fact falling for determination in the present case, that is not a necessary feature in a s.202 review, and certainly not a systematic one. As often as not there will be no real question of fact, and the decision will turn on the weight to be given to this or that factor against an undisputed background: … Now clearly the statutory scheme is either compliant with Article 6 or it is not. Its compliance or otherwise cannot vary case by case, according to the degree of factual dispute arising. That would involve a wholly unsustainable departure from the principle of legal certainty. In my opinion, judged as a whole, this statutory scheme lies towards that end of the spectrum where judgment and discretion, rather than fact-finding, play the predominant part.
44. I think it important also to recognise the potential scope of the judicial review jurisdiction, replicated in this scheme in HA s.204. The judge has ample power to decide whether the review officer’s decision was one which was properly available to her on the evidence which she had. … Given that (as I would find) the s.202 process does not of itself fulfil Article 6, the judge is perfectly entitled, within the jurisdiction given him by s.204, to subject the earlier decision to a close and rigorous analysis.”
“… the Court notes that, while the High Court could not have substituted its own findings of fact for those of the inspector, it would have had the power to satisfy itself that the inspector’s findings of fact or the inferences based on them were neither perverse nor irrational.
Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue … Indeed, in the instant case, the subject-matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgement in the regulation of citizens’ conduct in the sphere of town and country planning.”
(i) section 28 of the 1981 Act itself contains a number of procedural safeguards: e.g. section 28(3) provides that a notification under section 28(1) must specify the time within which and the manner in which representations or objections with respect to the notification must be made and imposes a duty upon the Council to consider any representation or objection duly made;
(ii) the notification contains (inter alia) a statement as to why English Nature has formed an initial view that the site is of special interest, thus enabling informed representations and objections to be made;
(iii) section 28(6) provides that the notification shall cease to have effect if it is not confirmed within nine months;
(iv) prior to confirmation being considered by the Council, ample opportunity is given after notification and, in some cases, as in this one, before notification for detailed representations and objections to be made by a variety of appropriate means, including experts’ reports, detailed correspondence and dedicated meetings with English Nature’s officers, all of which occurred in the present case;
(v) a detailed and comprehensive report, containing details of the various representations and objections and all other relevant information, is prepared by English Nature’s officers about two weeks in advance of and for use at the Council’s meeting at which confirmation of the SSSI in question is to be considered: on request, the report is made available to owners/occupiers in advance of the meeting;
(vi) the meeting at which confirmation is to be considered is held in public and an opportunity to make oral representations to the Council is given to those who wish to do so: in the present case, Aggregate Industries’ solicitor made oral representations to the Council at the meeting of 11th July 2001 and there is no proper reason for doubting Dr Andrew Brown’s assertion that Aggregate Industries were given a fair and public hearing on that occasion;
(vii) the Council is a public authority and thus required to act in accordance with the normal principles of procedural fairness and/or rules of natural justice: if, for any reason, the Council’s decision-making process should fail to accord with any of those principles, the resulting decision to confirm an SSSI would be liable to be quashed in accordance with ordinary principles of domestic administrative law;
(viii) the 1981 Act provides further important procedural safeguards even after confirmation of an SSSI: e.g. the right to appeal to the Secretary of State against a refusal of consent or the service of a management notice; and
(ix) if a person affected by an SSSI makes further representations after its confirmation, it is open to English Nature to vary the notification or to de-notify the site in question (see sections 28A and 28D of the 1981 Act).
(i) English Nature is an expert body established for the purposes of nature conservation and fostering understanding thereof: see section 131(1) of the Environmental Protection Act 1990;
(ii) under section 28 of the 1981 Act, English Nature is specifically charged with the duty of notifying and confirming any area of land which, in its opinion, is of special interest by reason of any of its flora, fauna or geographical or physiographical features;
(iii) the discharge of its statutory duty under section 28 of the 1981 Act requires English Nature to exercise its expert judgment on technical and scientific matters as well as on policy issues: so far as concerns the factual and technical aspects of that process, English Nature is far better placed and qualified than a court to make the requisite assessments and value judgments: essentially English Nature is required to carry out a scientific assessment of the site in question, a process which is well summarised in the following extracts from the Joint Nature Conservation Committee’s publication “Guidelines for selection of biological SSSIs”:
“3.1 The NCC is required only to exercise its “opinion” in the selection of sites for notification, and the use of this word is a wise recognition that special (scientific) interest is a matter of informed best judgments rather than the rigid application of objective rules;
3.2 The determination of special interest requires first the descriptive recording of the biological attributes and controlling physical environmental features of an area and then the application to these of agreed criteria of nature conservation value. … The evaluation part involves integrating and balancing the views not only of widely differing interests in the phenomena of nature, but also many different individuals within each interest.
3.3 The complexity in evaluation lies not only in differences in values and needs between separate interests, but also in the diversity of viewpoints within any one interest. And in nature itself there is such enormous variety to be considered – a vast array of habitats, communities and species which may need assessing in different ways by virtue of the widely varying environmental patterns which control their existence. Nor do nature conservation values necessarily remain static … The second part of the determination process must therefore inevitably remain a matter of best judgments …”
“117. If, therefore, the question is one of policy or expediency, the “safeguards” are irrelevant. … The reason why judicial review is sufficient … to satisfy article 6 has nothing to do with the “safeguards” but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.”
“(i) the rule that a public authority should not defeat a person’s legitimate expectation is an aspect of the rule that it must act fairly and reasonably; (ii) the rule operates in the field of substantive as well as procedural rights; (iii) the categories of unfairness are not closed; (iv) the making of an unambiguous and unqualified representation is a sufficient, but not necessary trigger of the duty to act fairly; (v) it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence of public authorities to their promises. … I would however add a few words by way of comment on (the) fifth proposition, as in my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation.”
“transitory in time and space, i.e. (the areas) will no longer provide favourable habitat for these bird species … as the growing tree crop closes over. Furthermore these areas have no other special interest.”
Mr Fookes pointed out that the policy in question had not only been communicated to the land-owners directly affected by it, but it had also been publicly published. He submitted that, when taken with English Nature’s further assertion within the 1994 rationale that “In reaching decisions on special interest, Council is determined to be consistent and objective”, these matters gave rise to a legitimate expectation on the part of Aggregate Industries that the policies applied to the site would only be changed on a rational basis.
“… it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the (decision-takers) have acted without any evidence or upon a view of the facts which could not reasonably be entertained.”
“… localities which normally support 1% or more of the GB population of an Annex 1 species in any season, qualify for SPA classification. The Thames Basin Heaths proposed SPA, taken as a whole (emphasis added), supports an estimated 8%, 10% and 28% respectively of the GB breeding populations of (nightjar, woodlark and Dartford warbler).”
MR JUSTICE FORBES: Can I just confirm that each of you has received a copy of the draft judgment for your consideration? Thank you.
I have received some comments from Miss Collier, thank you very much and I do propose to incorporate those in the way that I will indicate in just a moment. In addition to those, I, myself, noticed a couple of errors which require correction. So by reference to the original draft of the judgment, if you turn to paragraph 28, you will see that the abbreviation for the Convention has got its letters the wrong way around. It should be ECHR, but in the first instance it is mentioned to be EHCR, so I have corrected that error. Then if you turn in the original draft judgment to paragraph 93, you will see that, in fact, there are two paragraphs 93, with no break between them. So what I have done, of course, is to break the paragraphs at the end of the first paragraph 93 so that there is a correct break and from then onwards it has been necessary to renumber the paragraphs so that the second paragraph 93 becomes 94 and each of the succeeding paragraphs, of course, become one number up as a consequence. So the old paragraph 94 becomes 95.
Those corrections have been carried forward into the new draft of the judgment which also incorporates the vast majority of the suggestions by Miss Collier, most of which I do not need to refer to, but I think it would perhaps be helpful if I referred to some of those so that you can see what I have done.
I assume that everybody has had the copies of these corrections because her communication to me indicated that you had received them. The first one raised a query with regard to paragraph 4 and the quotation at 4.7. If you can just turn to that, the quotation from Dr Brown's witness statement and a query has been raised about the passage in parenthesis which reads: "from the current list, members of the Council" if everybody has that. Miss Collier raised a query as to whether the word "of" should be inserted between "list" and "members". The answer to that is no. In fact, what you have there is that the passage in parenthesis is my adjustment to the original text in order to make it more conveniently readable for the purposes of this judgment and so if you read the whole of that sentence you can see what is intended, starting with the word "as":
"As will be apparent (from the current list, members of the Council)...have considerable expertise and experience..."
And so forth, I know it looks a bit odd, but when you read it as it is written and ignore the parenthesis, because, of course, they are only there to indicate the textual adjustment by me, it says what I intended it to say.
The next one to which I want to draw your attention is Miss Collier's point number 11, paragraph 50. And again if you use the new draft, the point made by Miss Collier was with regard to the way in which counsel on behalf of English Nature approached the submissions made by Mr Sales with regard to the applicability of Article 6. In the original text I had said that Mr Sales' submissions, with regard to this aspect of the matter, were supported by Mr Howell and the point is made that that was not done expressly. Now, what I have done, therefore, is to adjust the text by inserting the word "tacitly". I hope that meets with your approval, Miss Collier, because the impression I gained was that whilst Mr Howell was not making those submissions, he did not disagree with them and although he did not expressly support him, I certainly got the impression that tacitly he supported them. Does that cause you any problems?
MS COLLIER: My Lord, may I have one minute?
MR JUSTICE FORBES: Yes.
MS COLLIER: My Lord, thank you, yes.
MR JUSTICE FORBES: And you can see, therefore, that the last sentence of paragraph 50 now reads:
"On behalf of the Secretary of State, Mr Sales submitted that Article 6(1) was not engaged and he was tacitly supported in that submission by Mr Howell QC on behalf of English Nature."
The only other one to which I think I need to make specific reference is point number 19 which deals with the transcript in the case of Begum. The relevant paragraph is now 99 as a result of the renumbering, it was in the original draft paragraph 98, and the query raised by Miss Collier was with regard to the circumstances of the transcript being sent to me after I had reserved judgment in this matter. In the original draft I had said that it was sent to me or to the court by agreement of the parties and Miss Collier's point was that it was sent by English Nature, which of course is perfectly correct. There was no express agreement, as such, but copies were sent to counsel for the other parties to enable them to make submissions if they wished. I am not sure that a great deal turns on this, but I have adjusted the text to reflect, I hope, more the nature of what Miss Collier says than the original text perhaps did. So if you look at the final part of paragraph 99 you will now see that it reads as follows:
"The transcript of the decision of the Court of Appeal in Tower Hamlets was sent to me, without objection, for my consideration and assistance by counsel for English Nature after I had reserved judgment. Transcripts were also sent to counsel for the other parties, to enable them to make submissions if they wished. In the event, none of the parties wished to have or sought any opportunity to address any further submissions to me in the light of that decision."
I hope that meets with your concerns, Miss Collier.
The other matters raised by Miss Collier in her very carefully prepared note were minor textual adjustments or corrections, most of which were the result of typographical errors or slips, misquotations or omissions from quotations. I have accepted all of those and you will find that they have been incorporated into the text in the appropriate fashion.
Is there anything that anybody wishes to say by way of further correction or amendment to the draft? Very well. Thank you. In that case I direct that the written judgment handed down by me this morning is to stand as the transcript of my judgment in this matter and, accordingly, for the reasons appearing in that judgment, this application is dismissed.
MS COLLIER: My Lord, thank you.
MR BOYLE: Forgive me, my Lord, it is entirely up to you, my Lord, which order you wish to deal with this matter, but as my Lord is aware I have an application for leave.
MR JUSTICE FORBES: Yes, I see that, Mr Boyle. I have read your skeleton. Let me hear Miss Collier first and then I will come on to your application in due course. Yes, Miss Collier.
MS COLLIER: My Lord, I first of all ask for an order to be made dismissing the application.
MR JUSTICE FORBES: Yes.
MS COLLIER: My second application is to ask for the first defendant's costs to be assessed, if not agreed.
MR JUSTICE FORBES: Yes. Is there anything you want to say about that, Mr Boyle?
MR BOYLE: Only this, my Lord: I do not oppose that provided that it is the only order being made.
MR MAURICI: My Lord, I have an application for costs, but we might leave that for the moment.
MR JUSTICE FORBES: Yes. Very well, application dismissed. The claimant to pay the first defendant's costs, to be subject to detailed assessment if not agreed. Well, we will take it in stages. Then, Mr Maurici.
MR MAURICI: Yes, my Lord. The Secretary of State does seek an order for his costs in this case. My Lord, your Lordship sets out at paragraph 3 of the judgment the circumstances in which the Secretary of State becomes involved in these proceedings and effectively the reason being, of course, that Aggregate Industries sought a declaration of incompatibility, something they sought throughout the course of the proceedings. My Lord, in those circumstances, as your Lordship rightly notes, the statute gives the Secretary of State entitlement to appear in these proceedings and, my Lord, what I say about that is that the statute recognises that the Secretary of State has a distinct interest in proceedings where a declaration of incompatibility is sought. My Lord, that distinct and separate interest is, of course, an interest in the legislation which is in issue because, obviously, my Lord, if your Lordship had decided that the legislation was incompatible, then, of course, it would fall to the Secretary of State to consider what legislation would have to be brought forward to change that.
My Lord, I do have two authorities which look horrendously large, one of which your lordship has seen. But, my Lord, in fact, we only need to look at a very small part of them. One of them is Bovis which your Lordship has seen, the other one is Bloor Homes. In both cases the Secretary of State sought an order for costs in circumstances where declarations of incompatibility had been sought. In both cases Ouseley J made orders for costs.
Now, my Lord, I do not know whether you have Bloor Homes there first.
MR JUSTICE FORBES: Yes.
MR MAURICI: My Lord, first of all, we need to look very briefly at paragraph 4, at the first page of the judgment. My Lord, you will see there:
"The Secretary of State for the Environment, Transport and the Regions also appeared because it was thought that the Claimant's case involved a challenge to the compatibility of the Structure Plan process with the Human Rights Act 1998. In the end, no such case was advanced, although it was contended that on the facts, Article 6 [of the Convention] was engaged and breached."
Then, my Lord, I have put a tag in.
MR JUSTICE FORBES: Yes, I have it, thank you.
MR MAURICI: You will see that Ouseley J says:
"I am going to make an order in this case in favour of the Secretary of State for these reasons: the development of the human rights jurisprudence in relation to the planning system has plainly been a matter which has and will continue to engage the courts, particularly in working out the jurisprudence post Alconbury. A fairly significant attack initially was raised and it was legitimate for the Secretary of State to seek to participate in the proceedings and prepare the case. Whilst it is clear from Mr Holgate's skeleton that the human rights aspect was going to play a lesser part in his submissions, and it might be said on that basis that certainly whilst Mr Holgate had hoped the case, the opening, whilst related to the skeleton----"
MR JUSTICE FORBES: Just a moment. I do not understand this one. There seems to be some sort of textual muddle going on here. Give me a moment to read it to myself.
MR MAURICI: Yes.
MR JUSTICE FORBES: Well, far be it from me to try and sort out this extremely lengthy sentence, but I think I get the general thrust of it. What the judge seems to be saying is that Mr Holgate had hoped that the human rights aspect was going to play a lesser part in his submissions and that was how it seemed in his skeleton, but, in the event, it turned out to be a very much more significant issue than anticipated. I think that is the general thrust of what the judge is saying, is it not.
MR MAURICI: Yes, my Lord. He goes on to say:
"...nonetheless, it was, in my judgment, legitimate for the Secretary of State with a particular interest and a role that he has in relation to the planning system, to make clear to the court, in the light of the argument the human rights were engaged, albeit that it was not pressed to any extent, the jurisprudence..."
MR JUSTICE FORBES: Right, yes.
MR MAURICI: So, my Lord, that is the first case that I wanted to refer your Lordship to. Now, my Lord, Ouseley J made a similar decision in the Bovis case. My Lord, you will recall in the Bovis case there were two claimants. Initially both sought declarations of incompatibility but at the hearing one pursued that and one did not pursue the actual declaration of incompatibility, although both raised substantial human rights arguments. So, my Lord, it is the penultimate page of the transcript.
MR JUSTICE FORBES: Yes.
MR MAURICI: I think, first of all, your Lordship needs to see the submissions made by Mr Charles George QC. It is the first part of the transcript, third paragraph, Mr George says: "Can I indicate that I do not formally agree that".
MR JUSTICE FORBES: Where are you now? I am at the penultimate page at the moment, where do you want me to go?
MR MAURICI: My Lord, you see the first person to speak is Miss Olley and then Ouseley J and then Mr George.
MR JUSTICE FORBES: Yes, I see, I have got it. Yes, thank you.
MR MAURICI: My Lord, this is Mr George, on behalf of Bovis Homes, opposing the order for costs in favour of the Secretary of State. He says:
"Can I indicate that I do not formally agree that. In my submission the Secretary of State is perfectly entitled to intervene, but it was not necessary for him to do so. Members of the Planning Bar are perfectly capable now of arguing those matters, and if he does intervene then he should bear his own costs. So that would be my primary submission."
And then, my Lord, you will see if your Lordship might read the next paragraph, that simply refers to the fact that Ouseley J referred to those Austrian cases which your Lordship was also referred to. Ouseley J did not find them helpful and so Mr George made the submission that there should be some reduction in the Secretary of State's costs because time had been spent on cases that were in fact to be of assistance.
MR JUSTICE FORBES: Yes, thank you.
MR MAURICI: And then, my Lord, you will see Ouseley J, towards the bottom of the page, my Lord----
MR JUSTICE FORBES: He split it between the two parties, 50/50.
MR MAURICI: Yes, my Lord, but the Secretary of State got the entirety.
MR JUSTICE FORBES: Yes, he got the whole of his costs entitlement, but split as between the two claimant.
MR MAURICI: That is right, my Lord. So, my Lord, in the circumstances of this case, applying some of the comments made by Ouseley J, clearly, my Lord, this is the first challenge that there has been to the legislation dealing with SSSIs and, my Lord, I do say, for the same reasons as in Bovis and Bloor, the Secretary of State has a separate and distinct interest in appearing and that interest being in the legislation which was in issue.
So, my Lord, in those circumstances, principally, I seek an order that the claimant pay all of the Secretary of State's costs, but, my Lord, if you are against me on that, because your Lordship will recall that we principally argue the non-applicability of Article 6, which your Lordship rejected, my Lord, if your Lordship thinks that should lead to some reduction, then, my Lord, the reduction I would suggest is that the Secretary of State be given two thirds of his costs. My Lord, it is purported there, I refer to the fact that if your Lordship takes, for example, our skeleton argument, eight of the 35 pages of that are directed on applicability and, my Lord, I would say a similar amount of argument, overall in the case, was directed to that.
MR JUSTICE FORBES: It has an appealing simplicity about it, Mr Maurici.
MR MAURICI: Yes, my Lord. And I would also add, in addition, that your Lordship was in the end persuaded that Oerlemans was a case which effectively was directed on a point which assisted.
MR JUSTICE FORBES: Yes.
MR MAURICI: My Lord, it is the case that it was the Secretary of State who drew that case to the Court's attention. It did not initially appear.
MR JUSTICE FORBES: Yes, I recall that and it did not appear in Mr Fookes' skeleton argument, although, of course, he did rely on it very heavily in his response.
MR MAURICI: Yes, my Lord. So, my Lord, I will say again, effectively, in relation to those arguments, that the essential point which the Court decided was the point put forward by the Secretary of State. So, my Lord, for all those reasons I would seek an order either for all of the Secretary of State's costs or, if your Lordship is against me on that, two thirds of the Secretary of State's costs to be subject to detailed assessment.
MR JUSTICE FORBES: Thank you, Mr Maurici. Well, Mr Boyle.
MR BOYLE: My Lord, as indicated I do not resist the English Nature application, provided there is only one award, but I do resist the Secretary of State's application and I have two main submissions on this, my Lord. Can I please hand up the case of Donoghue and also an extract in relation to costs, the case of Cummins & Ors v London Borough of Camden which I understand your Lordship has the main case on, supplied after the end of the hearing.
MR JUSTICE FORBES: Yes, thank you.
MR BOYLE: I am also, my Lord, I should indicate, going to rely on Bloor and Bovis in my submissions, contrary to my learned friend's submissions. May I start with my first submission, with Donoghue, and that is this: in Donoghue, the Court of Appeal had to consider the appropriate procedure, quite apart from the merits within the case of the Secretary of State intervening in cases similar to this where a matter of incompatibility has been raised leading to the declaration of the incompatibility under the Act. My Lord, if I may take you most easily by reference to the paragraph numbers of the judgment rather than the pages.
MR JUSTICE FORBES: Yes.
MR BOYLE: My Lord, will see Lord Woolf CJ (as he then was) paragraph 15 sets out, conveniently, some of the provisions of the Human Rights Act and I draw my Lord's attention particularly, of course, to section 5(1):
"Where a court is considering whether to make a declaration of incompatability, the Crown is entitled to notice in accordance with rules of court..."
The declaration, of course, being made under section 4 and then 5(2):
"In any case to which subsection (1) applies-
[that is where the Crown has been given notice]
(a) a Minister of the Crown...
is entitled, on giving notice in accordance with the rules of court, to be joined as a party to the proceedings."
Paragraph 16 sets out the CPR rule, paragraph 17 sets out extracts from the Practice Direction and paragraph 20, my Lord, over the page, Lord Woolf comes to a series of conclusions starting with:
"(i) the formal notice...should always be given by the court."
My Lord, from that it is perfectly plain, in my respectful submission, that the entitlement for the Secretary of State to intervene is in relation to incompatibility. The case may very well, and in this case did, turn on compliance or lack of compliance with the Human Rights Convention, as opposed to incompatibility of legislation under the Convention. The pleadings and the skeleton on behalf of the claimant, my Lord will recall, took in the alternative a declaration of incompatibility, but that was plainly on the basis that, should my Lord find lack of compliance and then the first defendant rely on the section 6(2) defence 'we are forced by statute to behave in this way', then in those circumstances the declaration of incompatibility under section 4 would flow.
My Lord, it is quite proper for the court when receiving the pleadings, as it did receive, to see here is an issue which may raise a declaration of incompatibility being decided upon and hence give notice to the Secretary of State. It is quite proper then for the Secretary of State to come and be joined as a party to that, because his entitlement turns on the notice given by the court.
The question then is: to what end does the Secretary of State ask and be joined to appear before your Lordship? And the answer is to argue the incompatibility point. That point was not and never needed to be argued because the first defendant never took the section 6(2) defence.
My Lord, the Secretary of State either did or certainly should, in my respectful submission, have known at a relatively early stage, having been first warned by the court that English Nature, the first respondent, were not taking the 6(2) defence and hence the incompatibility point was never going to arise. As a result, the Secretary of State made a decision to appear and, my Lord will recall, I obviously was not here at the time, but my Lord will recall, argued the whole of the human rights issue, principally, of course, the compliance point rather than the----
MR JUSTICE FORBES: That was the main point that was argued by the Secretary of State.
MR BOYLE: In the end, my Lord, that was the only point on human rights. The one point, therefore, which did not need to be argued was the one point which, ironically, gave the Secretary of State its entitlement to appear. So, my Lord, that is my first submission that the Secretary of State should have recognised that and taken no further part.
The second submission is this, my Lord: while the statute and the rules are clear that the Secretary of State is entitled to be joined, it is silent, or they are silent, as to his entitlement as to costs and, in those circumstances, my Lord, in the absence of a clear indication to the contrary, I respectfully submit that the court should abide by the usual rule, that is that a second set of costs is only awarded where there is some separate interest and, of course, not always even then.
My Lord, in support of that I first make a point which you might characterise as public policy, the system set up by the Human Rights Act that enables a declaration to be sought, should not, in my respectful submission, be run, to put it loosely, in a way that penalises those who are seeking the declaration under the Act. The simple reason being, my Lord, that Parliament presumably intended there to be an ability for citizens to bring these points and if in every case the government chooses to intervene and expects to have its costs paid and those costs awarded, then there may very well be a disincentive on the citizens bringing the very points which the Act was introduced in order to enable them to bring. That is my first point.
In addition, my Lord, if Laws LJ is correct in the Tower Hamlets v Begum case, that this exercise that my Lord has had to undertake in this case, looking at the statutory scheme, what the statutory scheme systematically has to do, if, my Lord, he is correct that it is a once and for all exercise because either the scheme is compliant or it is not compliant, then, in effect, whoever first brings the case in a particular statutory scheme is bringing a test case, as it were, on behalf of the public at large and again, in those circumstances, I submit there is a strong public interest case not to penalise that claimant with having to pay the government's costs for attending.
My Lord, that is a broad policy submission. I have also, and I hasten to add this is in no way a scientific exercise, attempted to look for the practice being undertaken by the courts in this matter to see if there is some sort of pattern that I can find, remembering, my Lord, that they said that the only rule on costs is there is not a rule, so I put that first.
My Lord, I have looked at various cases starting with the Donoghue case itself. My Lord will see from the parties that the Secretary of State, it is page 696, the Secretary of State appears as interested party and Mr Philip Sales indeed. Now, my Lord, from the very last page, my Lord will see that there was no order for costs, save the appellant's costs to be assessed because he would appear to be on legal aid.
It certainly is not the case, my Lord, as my learned friend would appear to have been submitting, that in any case where the Secretary of State intervenes under section 5 he has a particular interest because were that to be the case inevitably he would always get his costs under the usual rule. There is the case of McLellan v Bracknell Forest my Lord is familiar with that, in the Court of Appeal, again I think it was the judgment which was given to my Lord after the hearing closed. Again, the Secretary of State appeared to intervene, run the human rights point, and there was no order for costs in his favour.
My Lord, I take my Lord then to the Cummins extract if I may.
MR JUSTICE FORBES: Yes.
MR BOYLE: It is loosely, again, active in this field. The first page of that extract starts with Mr Hoffman making a submission. Mr Hoffman representing the first respondent, London Borough of Camden and he says: "...I am expressly instructed not to make application for costs." To which Ouseley J's response is "Very wise". The second respondent, who is the Secretary of State, is then silent because my Lord then turns the page and finds Mr Harrison representing the third set of defendants or respondents, the interested parties, developers. He applies for his costs, my Lord will see it in the middle of the page.
MR JUSTICE FORBES: Ouseley J applied the usual Bolton approach, did he not, to an interested party?
MR BOYLE: If I then, my Lord, turn to the Bloor case which I am grateful to my learned friend, because I had not been able to get hold of the costs debate at the end of the judgment, but my Lord now has it. If I take my Lord directly to the tabbed page and the part relied upon by my learned friend.
MR JUSTICE FORBES: Yes.
MR BOYLE: Ouseley J states:
"...it was, in my judgment, legitimate for the Secretary of State with a particular interest and a role that he has in relation to the planning system..."
There again an application, it would appear, of the usual rule to find a particular interest before granting----
MR JUSTICE FORBES: Well, that was the position in this case because, as it happens, Mr Fookes' submission as to the primary affect on the civil rights of Aggregate Industries by reason of the decision to confirm was the consequential application of policies in what I will now call the development plan, which were more restrictive of the right to use the land then would otherwise be the case and he made that his primary position. Now, understandably, of course, the Secretary of State was very concerned about that and its implications for planning law generally. It was the subject of a considerable amount of submissions and, in the event, although the Secretary of State lost on the general submission that Article 6 was not engaged by the decision to confirm, I was at pains to point out that I rejected Mr Fookes' primary case on that aspect of the matter, although I upheld his other points.
MR BOYLE: Yes, my Lord, again I am disadvantaged obviously having not been here.
MR JUSTICE FORBES: And that, as far as I can see, is a very significant matter because it went far beyond English Nature's interest in the matter, of course English Nature does have an interest in the development plan and so forth, but not to the same extent that the Secretary of State does.
MR BOYLE: Your Lordship will forgive me, as I understand my learned friend Mr Fookes' submissions to my Lord, obviously in the absence of my being here, during the oral submissions, it is difficult for me to be certain, but, as I understand it, the point about the impact on the SSSI designation on the planning status of the land, if I can put it that way, the application of planning policies to that land, that was an example----
MR JUSTICE FORBES: No, no. Mr Fookes -- it is probably best, you can probably best understand it if you look at paragraph 65 of the new judgment, just where I draw the -- well, in fact, the starting point is paragraph 59(iii) which is where Mr Fookes is identifying the particular matters which he said involved, showed that the decision to confirm was directly decisive of Aggregate Industries' property interest, if I can summarise them that way, and (iii) is the policy point.
"The fact that various policies in the relevant Structure and Local Plans..."
Which I then refer to as "the development plan",
"which are very restrictive of any development of the site, have now been "triggered" by confirmation of the site as an SSSI..."
And he described that as his primary point, in fact, and then at paragraph 65 you will see I start to introduce the Secretary of State's submissions with regard to this very important point and, in the event, I uphold the Secretary of state's arguments.
MR BOYLE: In that case, my Lord, I was wrong to use the words "as an example" as lessening it too much. My point was this: it is one of the ways in which it can be seen in Mr Fookes' submission, and my Lord was against him, one of the ways it can be seen that Article 6 was engaged, that was determination of these rights. Other ways in which, unless my Lord is with----
MR JUSTICE FORBES: Well, what Mr Fookes had to show, for the purposes of this part of the case, was that the decision to confirm was directly decisive of Aggregate Industries' civil rights and the primary position on that, so far as Mr Fookes was concerned, was the way in which the decision to confirm had triggered these various development plan policies which were very restrictive of Aggregate Industries' rights to develop the land in some way or another. So it is not just an example, it was his primary position on 'directly decisive'.
MR BOYLE: I am grateful, my Lord. As I say, I was not there and I take understanding of it, of course, hence I move away from the use of the words "as an example". One of the ways in which, perhaps the primary way, in which, as Mr Fookes submitted to my Lord, the matter was directly decisive of a civil right was the triggering of the development plan policies.
MR JUSTICE FORBES: But, of course, this from the Secretary of State's point of view has profound implications for planning law generally.
MR BOYLE: Well there, my Lord, I seek to persuade my Lord otherwise. But before I move on to that may I just finish the submission I was making?
MR JUSTICE FORBES: Yes.
MR BOYLE: Another, and here my Lord was in favour of Mr Fookes' submission, another way in which the designation of SSSI was determinative of civil rights, was the Oerlemans point, the way in which you treat your land, quite apart from the requirement to get development consent or whatever it is you are doing. There are many things for which you do not need to get development consent for if you have planning permission, you do not need to get planning permission for, and those are now effected. And my Lord was in agreement with my learned friend on that point.
The body who is concerned with the issue being challenged here is, in my respectful submission, English Nature and English Nature alone. The moment one focuses on what is being challenged, what is being challenged is the decision to designate as SSSI and that does have some planning consequences. It has, as my Lord has indicated, profound consequences in terms of what a landowner can do with his land. In that aspect my Lord found that Mr Fookes is correct. It is only English Nature who is concerned with this. This is the distinction I was going to draw, my Lord, with the Bovis case, but I can do it also with Bloor. Bovis was concerned with the local planning process; Bloor was concerned with planning permissions. In both of those the first respondent is a planning authority, one body operating within a general framework of legislation which applies to a number of bodies of similar type.
In that framework the Secretary of State has a very particular role and particular powers in terms of intervention, direction and so on, and perhaps a broader interest in making sure the whole system works given that one authority cannot sensibly be expected to take on the burden of protecting the system for all authorities. That is a markedly different, in my submission, situation from that operating under section 28 because that is what is being challenged here. It is not the knock-on consequences under the planning regime, or indeed for that matter, my Lord, the knock-on consequences for the landowner. Those are two ways in which it can be shown that Article 6 is engaged. Having established that one way or the other, we then move on to the question of whether the process is Article 6 compliant.
The question before my Lord at the moment is whether the Secretary of State is the right person to get his costs in defending the operation of the section 28 process. And, my Lord, on that, I do submit that the Secretary of State is in a very different position from his position under -- of course, a different Secretary of State, but the equivalent Secretary of State -- the planning regime, in that under section 28 it is firstly only English Nature who operates it, that means there is no other public body floating about, not a party to the proceedings who might have their interest compromised. But, secondly, the Secretary of State is expressly not empowered to interfere with the exercise of the powers under section 28. He has, therefore, no overarching or overriding interest in the way in which section 28 is operated. That is entirely up to English Nature. And, indeed, English Nature came here equipped and, as I understand it, did argue the whole of the human rights point, both the compliance and, of course, they needed to go on to the compatibility point, because they were not taking the section 60 defence.
Further, my Lord, the final twist of irony, much of my Lord's judgment turned, of course, on the Court of Appeal Tower Hamlets v Begum case.
MR JUSTICE FORBES: Well, no, not really, because, in fact, as I said in the judgment, the judgment of Laws LJ actually simplified the overall approach. What he said, in fact, was very much echoed by the submissions made by Mr Sales and Mr Howell and it provided a very convenient way of summarising all of their submissions, leading up, finally, to the crucial decision in this case and in cases like this, that the decision in question was one of policy and expediency, rather than one which involved a determination of primary facts. So the decision in Begum did not, as it were, radically change the law in favour of the Secretary of State and English Nature, what it did was to give a well-illuminated path to how you approach this critical question as to whether or not the decision-making process, by the administrative decision maker, is one involving decisions of primary fact or whether it is more a case of deciding matters which are ones of policy and expediency.
MR BOYLE: My Lord, yes. My simple point is this: it was English Nature who put that case in, giving my Lord the illuminating path, as your Lordship puts it.
MR JUSTICE FORBES: Yes, well.
MR BOYLE: So, my Lord, those then are my submissions on the second award of costs.
My Lord, I do say this, in the alternative, if your Lordship is against me on that, there is, as my Lord will have seen, a considerable amount of overlap within the English Nature submissions and the Secretary of State's submissions and certainly, although penalising is going on, the claimant should not have to pay for twice the consideration of the one issue. If my Lord is of the opinion, contrary to my submissions, that the Secretary of State had a particular interest which entitles him to his costs, then that means this particular interest which is separate from English Nature, and English Nature neither should or perhaps could not have argued it in the way that they did.
MR JUSTICE FORBES: Yes. Thank you. Thank you, Mr Boyle.
MR BOYLE: I am grateful.
MR JUSTICE FORBES: I need not trouble you any further, Mr Maurici, unless you want to seek to persuade me that you should have the whole of your costs rather than two thirds?
MR MAURICI: No, my Lord.
MR JUSTICE FORBES: Very well. I do not propose to give a detailed judgment on this matter, except to say that Mr Boyle has submitted that, in the circumstances of this case, it would not be appropriate for the Secretary of State to be awarded any of his costs or, in the alternative, if he is entitled to any costs it should not be the whole but only a modest proportion.
I have come to the conclusion that the Secretary of State should be awarded two thirds of his costs. Stated briefly, my reasons are as follows.
The Secretary of State is entitled to be joined as a defendant to these proceedings, for the reasons which are set out in paragraph 3 of my judgment, namely that the claimants had sought by way of an alternative claim a declaration of incompatibility pursuant to section 4 of the Human Rights Act. If the matter stopped there I might have been persuaded by Mr Boyle that that would not be sufficient in this case to entitle the Secretary of State to a separate award of costs in his favour. However, it does not stop there. As is apparent from paragraph 59 of my judgment, it was a significant plank in the claimants's case, that Article 6 was engaged by the decision-making process which resulted in the confirmation of the SSSI, that various policies in the relevant structure and local plans which are very restrictive of any development of the site in question had been triggered by confirmation of the site as an SSSI.
Mr Fookes made that particular matter the "primary practical effect" of the decision to confirm. It was therefore at the forefront of his submissions that Article 6 had been engaged by the decision making in question. It is not necessary, I think, to elaborate upon why that submission has profound implications for general planning law and was therefore a matter of considerable concern to the Secretary of State, beyond the immediate circumstances of this particular case. It is also to be noted that this is the first case which has called into question the decision making of English Nature with regard to confirmation of SSSIs and, therefore, the first occasion upon which this particular sort of argument has arisen.
The significance of the argument is apparent from the relevant paragraphs of my judgment and I do not propose to repeat item. Suffice it to say that, having considered carefully the submissions by the parties with regard to this particular aspect of the matter, at paragraph 71 I made it clear that I accepted Mr Sale's submission that Article 6(1) is not engaged by the formulation and presentation of development plan policies. The consequence of that was that, although I accepted that Article 6 was engaged in the circumstances of this case, I made it clear that I was excluding from my reasons for reaching that conclusion, any part of Mr Fookes' submission that the applicability of certain development plan policies was an effect which was directly decisive of the claimant's relevant civil rights. I referred to paragraph 75 of my judgment in which I said this:
"In my view, confirmation of the 2001 SSSI was determinative of Aggregate Industries' civil rights to use and enjoy its property for the reasons put forward by Mr Fookes, but excluding those based on the applicability of certain development plan policies (as to which, see my conclusions as set out in paragraphs 65 to 72 above)."
In my judgment, the Secretary of State was entirely justified in appearing at the hearing of this case and, in particular, for the purposes of dealing with that particular aspect of the matter, if no other.
However, the Secretary of State had submitted that Article 6(1) was not engaged at all by the decision-making process involved in the confirmation of the SSSI in question. As I have already indicated, I rejected that submission. It was a submission which covered a significant amount of territory, other than the area which I have just identified as being one of great importance to the Secretary of State generally.
Having regard to the fact that the overall argument failed and that it did take a significant amount of time by way of submissions at the hearing, I have come to the conclusion that the appropriate order to make in this case is that the Secretary of State should be awarded two thirds of his costs, such costs to be subject to a detailed assessment if not agreed.
I merely add that if that particular short ruling is ever to be used in future it will be subject to editorial correction and adjustment to make it wholly grammatical, but of course the subject of the reasoning will not be altered. Yes, Mr Boyle, you have a further application.
MR BOYLE: I wish counsel's submissions could also be adjusted to make them grammatically correct when written in text.
MR JUSTICE FORBES: Yes, well, there we are. I have to say that we do accept errors and adjustments. Anyway.
MR BOYLE: My Lord, yesterday I trust my Lord received a skeleton in relation to this application for permission to appeal to the Court of Appeal.
MR JUSTICE FORBES: Yes.
MR BOYLE: And, my Lord, with it I enclosed, just for convenience, three authorities, which I was not proposing to take my Lord to. The points are well established.
MR JUSTICE FORBES: I have read them, in any event.
MR BOYLE: I am grateful. My Lord, then based on those tests I take the three grounds, and I regret I take them in reverse order.
MR JUSTICE FORBES: Yes, I saw that.
MR BOYLE: It was more convenient to treat them in that way. My Lord, taking then the ground (3), lack of justifiable basis, I should perhaps preface this by saying that grounds (2) and (3), my Lord will see that primarily my case is that it cannot be said that there is a merely fanciful prospect of success on grounds (2) and (3), although I do also add that there is particular public interest in the point being taken. Under ground (1), which I will take last, I add to a very strong submission that it cannot be said there is a merely fanciful prospect of success, any further late-run submission of grave public interest in that particular point. Turning then, my Lord, first to ground (3), lack of justifiable basis. My Lord, the paragraph numbers in square brackets refer to the draft judgment.
MR JUSTICE FORBES: The original, yes I understand, yes.
MR BOYLE: And indeed my version of the judgment remains that. So I start, my Lord, at paragraph 121 and I characterise, my Lord, as establishing that it is common ground that the site did not meet the SSSI one per cent population criterion, which was the subject of the debate on that point. And then from paragraph 122, I hope my Lord forgives me I have said that the court there accepts, it is not express, but perhaps it is tacit, and the court accepts that it would be irrelevant consideration to designate SSSI because the department had made a commitment to designate the special protection areas, SPAs, and had to underpin those SPA designations with SSSI designation.
Then, my Lord, I take paragraph 124 where my Lord sets out Mr Howell's submissions for English Nature, the three points which appear from his skeleton and doubtless orally that you should not treat the guideline as a criterion and use a substitute judgment, rather you should take into account these three matters: rarity of species; the international importance of species; and the site's function as part of the SPA. My Lord, my submission is that those three amount to a gloss on the criteria, which, that is the criteria, do not say you can dip below the threshold if those three taken into account would indicate that you would wish to.
In any event, my Lord, I submit this: (1) the rarity of the species is expressly taken into account when the criteria is set and that reference is there to the bundle page my Lord was taken to in oral argument. (2) and (3) amount to, in my submission, saying 'Well, we will designate it as qualifying as part of the SPA, even though you would not qualify as SSSI' and I take my Lord again to a passage referred to in oral submission and in the skeleton where English Nature have said expressly that they are only designating because of the SPA designation.
My Lord, I further then submit that unless the criteria is altered by the gloss that Mr Howell submitted, then designation is not justified against those criteria and it is unlawful to introduce new or adjust old criteria in this ad hoc way. My Lord, I add then that the court should be particularly scrupulous in this sort of activity when dealing with a body which my Lord has acknowledged are not independent----
MR JUSTICE FORBES: I did not go quite that far, of course. What I said is it lacked the appearance of independence and impartiality, but it is not quite the same thing.
MR BOYLE: Well, my Lord, I take it in those terms then. Consequently, my Lord, I say that it cannot be said there is no real prospect of success. In addition, there is a particular public interest in the proper operation of the SSSI designation and the role of the public criteria in decisions, public law decisions generally. My Lord, I would underscore that particular point. The operation of SSSI designation is of importance, I would submit, both in terms of nature conservation, but also in terms of its impact on the landowner and so it is a matter of public importance.
MR JUSTICE FORBES: Yes.
MR BOYLE: Ground (2) then, my Lord, the legitimate expectation. I start, as my Lord does, with the Begbie case and paragraph 110, just picking out the point that legitimate expectation is part of the duty to act fairly, the duty on a public body. The core of the complaint, my Lord, I have characterised that as being there was a decision in 1994 not to designate, a decision in 2001 to designate whether there be no change at the site or to any, and I stress, material considerations, particularly if the site still does not meet applicable criteria.
There were again, my Lord, three points put forward by Mr Howell for English Nature. My Lord then deals with it in the following paragraph, starting at 414 and 415, I have paraphrased it to read: 'We never promised we would not change our mind'. To which my submission is: that is perfectly acceptable but you have to have a rational reason for doing so, and that rational reason is absent.
Secondly, then the submission on behalf of English Nature at 116: 'We must follow our statutory duty to designate if we are of the opinion that the site of is special interest'. Again, my Lord, in my submission, it was perfectly acceptable but only applies if the opinion is rational and the opinion is only rational if there is a rational reason for the change of opinion and again I note that is absent.
Coming then to the third point, 117, which I think was in the alternative English Nature submission: 'It was not irrational to change our opinion,' and took your Lordship to the record at GCPOO at 16. To this, my Lord, the submission is the rotation being there discussed. The rotation issue, is not a new consideration. That was as true in 1994 as it was in 2001. The rationale of GCPOO 16 is how it was explained in the covernote of Dr Brown and, again, my Lord was taken to it, I understand, in oral argument, 'But we are going to alter our position to support the SPA designation,' and that, in my respectful submission, as I understand my Lord also to agree, is an immaterial and is an unlawful reason.
I also, my Lord, add to the end of this that it should be recalled that the SSSI designation is both empowered and limited by section 28 in that it is the English Nature current opinion that the site is of special interest, not that it might be at some point in the future and the GCPOO 16 rotation point is, as I categorise it, saying 'We accept that it is not now, but it might be or will be in the future if treated in a certain way and so we will designate it'. That is what I call creative designation which is outside section 28 and hence it would be unlawful in any event. As a result, my Lord, I say again----
MR JUSTICE FORBES: Well, the fact that I do not interrupt you does not mean to say, Mr Boyle, that I accept that you have correctly interpreted all parts of my judgment.
MR BOYLE: I understand that entirely, my Lord.
MR JUSTICE FORBES: Yes, thank you.
MR BOYLE: Thank you and then ground (1), the human rights matter. My Lord, I record that at paragraph 75, no need for my Lord to go to it, but my Lord has found that Article 6(1) is engaged, and 94 that the court finds----
MR JUSTICE FORBES: Lacks the objective appearance of impartiality and independent, which is a very important distinction because it was never suggested, quite rightly, that there was any actual bias or prejudgment here.
MR BOYLE: That I fully understand, my Lord. But not independent and impartial for the purposes of Article 6.
MR JUSTICE FORBES: Yes.
MR BOYLE: The question then, as my Lord has put it in 95, is whether the whole process is that there should be compliance and not complaint, and hence reference to the composite approach in the case of Albert le Compte. My Lord, here I hesitate slightly and I put it in square brackets, the claimant does, very respectfully, not accept my Lord's characterisation, perhaps derived from the suspicion of my learned friend Mr Sales and Mr Howell , the characterisation of Mr Fookes' submission that the composite approach as a concept only applied if the decision maker is electorally accountable, not a submission that we would seek to make in relation to----
MR JUSTICE FORBES: It is a matter of interpretation, yes.
MR BOYLE: Mr Fookes, as I understand it was dealing with the Article 6 safeguards not necessarily the policy question point, sorry I put it rather glumsily, but that issue that arises out of Lord Hoffman's judgment in Alconbury.
I do then turn now, my Lord, to Laws LJ's judgment at paragraph 99 where my Lord there sets out extracts from Tower Hamlets v Begum. An illuminating path, my Lord called it. It is also, in so far as the case would be applicable, it would be binding upon this court.
MR JUSTICE FORBES: Well, I hope everybody accepts that it is not necessary for me to say that in the body of a judgment. You are right, of course.
MR BOYLE: My first point, and a little one, is that I am instructed that there is petition to the House of Lords in the Begum case and so I would submit that it would be wrong to close appeal in this matter while the approach in Begum which is illuminating but also, in my submission, going slightly further than has previously been said, and it is also the first Court of Appeal judgment directly on the point, while that matter is still open and I put a question mark here, if it does get permission to go to the House of Lords then we may consider it appropriate to join with them in a leapfrog application.
MR JUSTICE FORBES: Yes.
MR BOYLE: My Lord, the second point is this: Laws LJ's division, which is at paragraph 40 of his judgment in the extract that my Lord has incorporated into my Lord's judgment, is a division into two paradigms to the spectrum between A, statutory scheme systematically involving primary fact, and B, the statutory scheme systematically involving judgment or discretion. My Lord then comes to the conclusion that the issue in this case is the application of judgment and policy and/or expediency, there at 106 of the judgment.
That, my Lord, I have deduced is based in whole or in part on the Friends Provident approach referred to at 102, where there is a tripart-type division of primary fact, evaluation fact and policy which my Lord will recall was not only a submission made by the Secretary of State in that case but a submission repeated in the present case, my Lord, by Mr Sales. He had this tripartite division and that tripartite division, I submit, is not one which has been accepted by Ouseley J in the Bovis case, again reliance being placed upon that, where he says and I quote:
"[Lord Hoffman] did not treat issues of primary fact as issues to be distinguished from evaluation of fact."
In this case, in my respectful submission, the opinion that English Nature had to reach is one of primary fact or could be characterised as evaluation of fact, either way it is distinguished on one camp from the policy on the other. That is the first submission.
My Lord, in the alternative, over the page, if my Lord is correct to characterise the issue in this case as one of policy or expediency then I return to English Nature's lack of democratic accountability, which I submit prevents it from praying in aid the very reason that Lord Hoffman gave for saying that policy matters do not need the Article 6 safeguards. My Lord, I there set out three extracts from the Alconbury decision, Lord Hoffman's judgment which I trust made the point that, first of all, he sets out to establish that it is democratically-accountable institutions that do not need safeguards.
He highlights Mr Bratza's particular insight and again stresses the democratic nature of this matter under discussion and then he comes to the paragraph which my Lord has relied on at paragraph 106, he comes to this: the reason why, in policy matters, the safeguards are irrelevant has nothing to do with the safeguards but depends on what he calls "the Zumtobel principle" of respect for the decision of an administrative authority on the question of expediency and into that, given the context of Lord Hoffman's discussion, I there add administrative, ie democratically accountable authority; English Nature, as my Lord received the submissions, is anything but.
As a consequence, my Lord, again I start with the submission: it cannot be said there is no real prospect of success, but then go on, in terms of the public interest, the proper function of SSSI is of grave significance for nature conservation and effected landowners. Given the acknowledged apparent lack of independence and impartiality, the degree of Article 6 is of great public importance. It is critical, in my submission, that Laws LJ is correct in Begum, the once and for all point, that this categorisation of the statutory scheme is correct as this becomes the test case for SSSIs, the case law, in my respectful submission, which is, in essence, attempts to explain or apply Alconbury in a different context is far from clear or even consistent. There is no, apparently, Court of Appeal guidance on how to apply the Tower Hamlets distinction, those two paradigms, in practice; no Court of Appeal guidance on the degree of democratic accountability required for policy matters.
Then, lastly, I just put in a little bit of prejudice, the Secretary of State I understand, I am instructed at least, indicated at the begin of his submission that if he were to have lost, he would have taken the matter on to the Court of Appeal, with your leave or the Court of Appeal's leave.
MR JUSTICE FORBES: Yes, thank you.
MR BOYLE: I am grateful.
MR JUSTICE FORBES: Thank you, Mr Boyle. Is there anything you want to say, Miss Collier?
MS COLLIER: Simply that we oppose this application on the grounds that there are no real prospects of success. If I can very briefly address each of the grounds, again, as my learned friend did, in reverse order. Ground (3): lack of justifiable basis. The ground is essentially that English Nature has lost the one per cent criteria for designation and that the criteria do not say that one can, in fact, do that and go below the threshold guidance. Well, without wishing to take your Lordship back through the papers that were in front of the court at the time, that is simply not the case. It was made clear to the court that the thresholds were guidance. They must be regarded as guidance and subject to the judgment of those concerned. One document reference is 216 of bundle 1, but there were other document references which made that clear, that there was no fixed one per cent limit.
Then as to ground (2): legitimate expectation. My learned friend's submission seems to be premised on the submission that it can only be rational to change one's mind if there is a rational reason for doing so. Well, plainly that is the case. He says that a rational reason was absent. Again, in my submission, there is no real prospect of success on that. The reason for the change of mind was the change of increased knowledge about the importance of transitory inhabitants and there is no real prospect of success in showing that that was an irrational change of view.
Then as to ground (1): the human rights ground. In my submission there is no real prospect of success, particularly in the light of Tower Hamlets v Begum. Your Lordship has obviously given close consideration to the issues raised by Tower Hamlets v Begum in the light of Alconbury and if I may respectfully say so, for the reasons given in your Lordship's judgment there is no real prospect of success in showing that your Lordship's judgment was wrong in this case and that the (inaudible) question does not satisfy Article 6. And so, unless your Lordship has any further questions for me, those are my submissions.
MR JUSTICE FORBES: Yes, thank you. Is there anything you want to say, Mr Maurici?
MR MAURICI: No, my Lord. In relation to the second ground that the Secretary of State is concerned with then I support the submissions of my learned friend, Miss Collier.
MR JUSTICE FORBES: Anything finally you want to say, Mr Boyle, in the light of what has been said?
MR BOYLE: No, thank you very much.
MR JUSTICE FORBES: I am satisfied that this is not a case in which it is appropriate to grant permission to appeal. I am not persuaded by Mr Boyle that there is any real prospect of success with regard to my rulings with regards to any of the three grounds under which the decision in question was challenged, nor am I persuaded that there is any other compelling reason for granting permission to appeal in this particular case. Of course, it will be open to the Court of Appeal to take a different view. Accordingly, the application for permission is refused.
I will read out to you what I have written on the form which has to be completed with regard to these matters. Under the heading "Reason for decision" I have written this:
"I am not persuaded that there is any real prospect of success with regard to any of the grounds of challenge nor am I persuaded that there is any other compelling reason for giving permission in this particular case."
I will read it again:
"I am not persuaded that there is any real prospect of success with regard to any of the grounds of challenge nor am I persuaded that there is any other compelling reason for giving permission in this particular case."
Can I hand Donoghue back to you, Mr Boyle? I think that came from you and, Mr Maurici, thank you very much for those two copies of the other judgments, if I can return those to you. So is there anything else? Thank you all very much.