QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE HON PATRICK FISHER
TRUSTEES OF THE HON PV FISHER'S CHILDREN'S 1986 SETTLEMENT
- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr John Howell QC & Ms Jane Collier (instructed by Browne Jacobson, 44 Castle Gate, Nottingham NG1 7BJ) for the Defendant
Crown Copyright ©
Mr Justice Lightman:
"Stand Type of operation
10. Killing, injuring, taking or removal of stone curlews, or their eggs and nests. Intentional or reckless disturbance of stone curlews, their eggs or chicks.*
12. Long term afforestation of farmland in excess of 5 hectares.
20. Extraction of minerals including hard rock, sand and gravel, topsoil and subsoil except for on farm use.
21. Construction of roads, or the laying, maintenance or removal of pipelines and cables, above or below ground, except for agricultural or forestry purposes.
23. Erection of permanent buildings or reservoirs, or the undertaking of engineering work, including drilling, except for agricultural or forestry purposes.
*Accidental disturbance through agricultural and game management, for example, is not regarded as intentional or reckless disturbance."
THE ORNITHOLOGICAL BACKGROUND
"Any site that supports nationally important numbers of an Annex I species or a migratory bird species (at any season of the year) should be given consideration as to whether it should be proposed as an SPA. Some sites holding lower numbers of some Annex I species may also need consideration in view of the requirement to maintain distributions. Any such site should qualify as a potential SSSI. These SSSI selection guidelines have been written to embrace such special interest."
"28. Sites of special scientific interest.
(1) Where the Nature Conservancy Council are 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 every 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 giving 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."
(The provision in subsection (4) for a statement of the Council's views was added by the 2000 Act).
CHALLENGES TO DECISION
(1) The Relationship of designations as SPAs and SSSI
This application is not the occasion for any detailed examination of or exegesis on the relevant legislation (and in particular European legislation) relating to SPAs. In this context it is important to bear in mind that there is as yet no SPA and (in particular in the absence of an SSSI) there may never be, and the performance of the duty of English Nature under Section 28 cannot lawfully be deferred to await the exercise of jurisdiction by the Secretary of State to classify an SPA. It is sufficient for the purpose of this application to have in mind two matters. The first matter is that there are close links between the two statutory schemes. In this context it is relevant to note that: (1) Regulation 3 of the Conservation (Natural Habitats) Regulations 1994 provides that English Nature shall exercise their powers under section 28 so as to secure compliance with the Habitats Directive; (2) the Guidelines, after referring to the international obligation to nature conservation in terms of site protection under (amongst other treaties) the Birds Directive and the Habitats Directive (transposed into English law by the Conservation (Natural Habitats) Regulations 1994), go on in paragraph 3.2 to say:
"It seems axiomatic, that if an area, feature or species is of international importance, it must be of special interest in its total national occurrence. In these cases it is necessary to select all sites above a critical standard, and not to rely on choosing only exemplary areas in order to meet the international conservation obligation. This can apply to habitats which are extensive (e.g. blanket bog) and to species which are numerous … as well as to habitats and species which are localised and rare."
and (3) in Aggregate Forbes J held that English Nature were to take into account "the site's function as part of a larger area of European importance".
"The Government would expect, as a matter of logic, a site appropriate for SPA designation to fulfil the criteria for SSSI notification. If a site being considered for SPA designation were to be regarded as not fulfilling the SSSI selection criteria, the Government would wish to reconsider the evidence supporting SPA candidature."
These clearly have been the thrust of the Government's views for some time and were correctly understood as such by English Nature when the Decision was made.
(2) English Nature's Approach to Designating the SSSI
i) a representative of the Claimants, Mr Falcon, addressed the Council. He stated that it was not legally necessary to 'designate' and that "the existence of itself of an SPA does not in itself obligate the United Kingdom Government to create an SSSI";
ii) the Council of English Nature then received the legal advice given to it by the solicitor it employed for that purpose, Mr Richard Barlow, who stated that:
"Council members must be satisfied that the land which is being notified is of special interest. Much work has been done to devise this package in a way which properly covers all the issues but also can protect that which is considered to be special. And so the decision for you is to apply the provisions of the Act to this land";
iii) in the course of the Council's discussions, however, one member of the Council (Mr Nicholas Woolley) said that he thought that the fact that the land ought to be part of an SPA "in itself in the light of the English legislation and in the light of quite clear specific government direction to us..justifies and requires this land to be designated as an SSSI";
iv) thereupon another member of the Council, Mr Stephen Tromans (a well known barrister who specialises in environmental law), stated his view that, while
"the fact that land may be an SPA is clearly relevant to our decision, I don't think..[we can] say that...automatically it must pass the SSSI test, I think that we have to make up our own minds on that on the information available because that's what the legislation requires us to do".
v) in response to a question by another member of the Council about the relationship between SPAs and SSSIs, the Chairman stated that Mr Tromans had answered it, but the Chairman nonetheless asked Mr Tromans to say it again as it was an important point;
vi) Mr Tromans then stated that:
"It seems to me that whatever Government policy may be as to the linkage between SPAs and SSSIs, the question for us this morning as Richard Barlow said is whether the land meets the criteria of the legislation that we are dealing with. We can't regard ourselves as being bound by Government policy to say that something is a SSSI if we don't think in our heart of hearts that it really is, I think that is the key to it.";
vii) the Chairman stated that he thought that was "very clear" and invited Mr Woolley to speak;
viii) Mr Woolley then sought to explain that his view was that:
"if we have an area of land whether it be large or small, if it is of sufficient international importance that it should be declared an SPA. Surely to goodness if its of such international importance it is very hard to believe that it isn't of sufficient national interest. If the science is there to back up the international interest it surely is there in abundance to back up the national interest."
ix) the minutes of the meeting record:
(a) "Council discussed the issues noting that a decision was required upon the existence of special interest at the site and concluded that such special interest is in place on the Breckland Farmland site;
(b) "the reason for the notification (which the Council of English Nature was invited to, and did, confirm) was that "this site is notified for its internationally important population of stone curlew …."
MR JUSTICE LIGHTMAN: For the reasons set out in the judgment which I have handed down, I dismiss this application.
MISS WINDLE: My Lord, there is just the matter of our costs. It would also assist English Nature very much if you could indicate that this case was appropriate for leading counsel.
MR JUSTICE LIGHTMAN: Yes, it was appropriate for leading counsel.
MISS WINDLE: My Lord, I am grateful.
MR KOLINSKY: My Lord, I do not resist the application for costs. The only submission that I would make is that it is a matter for detailed assessment rather than this court.
MR JUSTICE LIGHTMAN: I will dismiss the application with costs and I will say the case was suitable for leading counsel. Plainly it was. I must say from all parties I have received immense assistance which I needed. Thank you very much.
MR KOLINSKY: My Lord, there is one other matter which is an application for permission to appeal. My Lord, I have hopefully, in order to assist your Lordship and take this matter as shortly as possible, I have prepared what I have to say in support of my application a speaking note. If I may hand that up now.
MR JUSTICE LIGHTMAN: Yes.
MR KOLINSKY: My Lord, I shall go through it with limited elaboration. My Lord, I do apply for permission to appeal. As my Lord will see in paragraph 9 I place it in respect of both limbs, both in terms of a real prospect of success and also in terms of public importance.
The starting point for the application, my Lord, is your Lordship's approach to the decision under challenge. Your Lordship says that there is no challenge to the notification itself, that is paragraph 3 of the judgment. The claimant intends to argue in the Court of Appeal that this analysis is not the correct. The claimant did challenge the notification by making objections to it through the relevant statutory process which, allowed for, on English Nature's own analysis, all matters, that is scientific objections, points of law and other issues -- that is a quote from page 100 -- to be taken into account in deciding whether to confirm the notification.
My Lord, we say that this is important because it affects what is under challenge. On your Lordship's analysis it is simply the decision to confer. By contrast on the claimant's analysis it is the whole decision-making process from notification to the decision to confer. We say that how the decision is defined affects the application of the Simplex approach to evaluating what influence any immaterial considerations had in the decision-making process. The claimants submit that it is at least arguable that the Court of Appeal will take a different approach to your Lordship on this issue, which we say defines the starting point for much of your Lordship's reasoning.
My Lord, the second point I make in support of my application for permission to appeal focuses on your Lordship's approach to the construction of section 28. Your Lordship's analysis is in essence that once English Nature has formed its judgment, it is under a duty to notify and thus the consequences of the notification are irrelevant: see in particular paragraphs 18, 19 and 22 of the judgment. The claimant will submit to the Court of Appeal that the fact that English Nature are under a duty, once they have formed a relevant judgment, syndicates the question as to what criteria are material in the process of forming the necessary judgment. The claimant submits that it is at least arguable --
MR JUSTICE LIGHTMAN: I have read the whole of your skeleton. It is embarrassing for counsel and difficult to make his submissions to the judge that he got it wrong --
MR KOLINSKY: My Lord, I am grateful.
MR JUSTICE LIGHTMAN: -- I appreciate that. Though helpfully and sympathetically presented, I think the right course is for you to make this application to the Court of Appeal. I have read through the whole of this. I do not think an appeal has a prospect of success, but you enjoy yourself and go off to the Court of Appeal and prove me wrong.
MR KOLINSKY: I am not sure I will get any further than this court.
MR JUSTICE LIGHTMAN: I have read it. It is helpfully written and sympathetically written. I think the best course is for you to present your application to the Court of Appeal. Thank you very much.