QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BOWN||(CLAIMANT)|
|SECRETARY OF STATE FOR TRANSPORT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR T MOULD AND MR T BULEY (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
Wednesday, 26 March 2003
Crown Copyright ©
"Within three months of the date of this permission details of an ecological monitoring and mitigation scheme shall be submitted to and approved in writing by the Country Planning Authority. Such approved scheme shall be implemented upon approval in writing and shall continue for a period of five years after construction of the development hereby permitted. The scheme shall address the following:"
There are then set out six matters, including:
"Effect on otters and badgers.
Impact of construction noise on the adjoining SSSI. Ongoing disturbance of over-wintering wetland birds. Counts of birds using the estuary in the vicinity of the development.
Changes to the distribution and extent of inter-tidal habitat in the vicinity of the development and changes to the plant communities of the saltmarsh."
The reason for the requirements in this condition was stated to be:
"To ensure adequate recovery of habitats and species during and after development and prompt action to remediate any failure to recover."
"No development shall take place until details of a scheme to protect saltmarsh habitat during and after construction has been submitted to and agreed in writing by the Country Planning Authority. The scheme shall include monitoring of the condition of the saltmarsh during and after construction."
The reason given for that is:
"To minimise damage to the saltmarsh, which is a nationally important habitat."
"1 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.
In this connection, account shall be taken of:
a. species in danger of extinction;
b. species vulnerable to specific changes in their habitat;
c. species considered rare because of small populations or restricted local distribution;
d. other species requiring particular attention for reasons of the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.
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.
2 Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
3 Member states shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.
4 In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats."
"At the request of Government, the NCC has identified sites of international importance for nature conservation for designation under both the convention Ramsar Convention and EEC Birds Directive. Identification and evaluation of these areas is a continuing process. To date a total of 218 candidate SPAs and 154 candidate Ramsar sites have been identified. It is the NCC's view that the presently proposed SPA network is the minimum of sites needed to carry through the objectives of this aspect of the Birds Directive. Several other areas have been proposed by various conservation bodies as being likely to qualify, or have been tentatively identified by NCC to fill gaps in coverage. As further information is obtained, either the eligibility of these will be confirmed or they will be deleted from the list."
At paragraph 5.14 it is said:
"The proposed suite of SPAs represents an irreducible minimum, and will need urgently to be complemented by land-use measures in the wider countryside. Some relevant examples are given. Our trusteeship of the environment will be promoted by the network of Special Protection Areas and presented in this report, together with recommendations for wider countryside actions which will be amplified later."
Then there is set out in two tables the proposed and designated SPAs. The first table includes sites which definitely qualify for either Ramsar and/or SPA status. Table 3.2 includes those sites for which information is still being reviewed. The Taw-Torridge Estuary is included as a site which, in the view of the authors of this report, definitely qualifies as an SPA and is included in Table 3.1.
"In this book are listed 256 such areas [specially favoured sites which support vulnerable species].
They are all of international importance and qualify for protection under the European Communities Directive on the Conservation of Wild Birds, and many also under the Ramsar Convention on Wetlands of International Importance. They are maintained wherever possible through sympathetic land management, with core areas notified as Sites of Special Scientific Interest...
This list is not the last word: new sites of importance could be added as survey work progresses. All the areas in this book have been carefully validated to confirm that they do support internationally important bird populations, and this assessment must continue to be kept under review."
One of the sites included is the Taw-Torridge Estuary. A description is given of it. It is said that the estuary supports nationally important numbers of wintering curlew. It goes on:
"In the five-winter period 1985/86 to 1989/90 average peak counts included 20 greenshank and 1400 curlew (2% of British). Notable also are regular large numbers of wintering wigeon, teal, ringed plover, golden plover and grey plover. Average peaks for each of these species approach the 1% British level. Other wintering species include little egret, spoonbill, hen harrier, merlin, peregrine, green sandpiper and common sandpiper."
It then continues:
"This estuary is largely unspoilt, but development proposals for marinas and a holiday village, may threaten intertidal areas and also increase the demand for leisure and recreational activities within the estuary. New and expanding activities suggest the need for controls and a management scheme to resolve conflicting demands for intertidal areas and open water."
The area of the suggested SPA is said to be 1,337 hectares. That was the position in 1992.
"The presence of a protected species is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in harm to the species or its habitat. Local authorities should consult English Nature before granting planning permission. They should consider attaching appropriate planning conditions or entering into planning obligations under which the developer would take steps to secure the protection of the species, particularly if a species listed in Annex IV to the Habitats Directive would be affected. They should also advise developers that they must conform with any statutory species protection provisions affecting the site concerned."
There were then listed in PPG9 the existing SPAs or those which the Government had proposed to designate as SPAs. They did not include the Taw-Torridge Estuary.
"A site which has been designated as a Special Protection Area (SPA), or has been selected as a candidate SPA, based on ornithological criteria (similar to, but not equal to, C1-C6) in recognised use for identifying SPAs."
That is somewhat expanded upon at page 18 of the book, where this is said:
"Application of this criterion is confined to designated SPAs, and to sites which have been selected as SPAs in the framework of a national inventory which has been used by government agencies as such (although not necessarily officially accepted). This criterion should be applied only to a minority of exceptional cases where it would be inadvisable to exclude the sites concerned from the IBA inventory."
Within the various categories there is included the Taw-Torridge Estuary with an area of 1,750 hectares which is said to fall within C7. The problem with that is that it does not fall within what are said to be the criteria set out in the body of the document, because it is not a designated SPA, nor has it been selected as an SPA within the framework of the national inventory used by government agencies as such. We know that PPG9 is the document upon which the Government rely; and it is not within PPG9.
"Firstly, I should point out that there is no such thing as candidate SPA status. However, the Taw-Torridge has previously been listed as a potential SPA in Stroud, DA, Mudge, GP & Pienkowski MW 1990. Protecting internationally important bird sites. A review of the EEC Special Protection Area network in Great Britain. NCC, Peterborough, presumably because it was included in earlier Important Bird Area (IBA) lists, as there is no information within Stroud et al (1990) to show why the site was considered to meet SPA criteria. In the 1989 IBA list the site qualified for IBA status because of its 'importance for wildfowl and waders (high species diversity but relatively low numbers)'. The supporting data showed an "average maximum" count of 2,921 Golden Plovers Pluvialis apricaria (although no count period is given) which suggests the site would have met SPA selection stage 1.1 at that time (ten years before the guidelines were published).
The 1992 IBA list cites the only qualifying species as Curlew Numenius arquata, which occurred in numbers of national importance (5 year peak mean 1985/86-1989/90 of 1,400 birds). Similarly, Curlew is the only qualifier in the IBA 2000 list (count as at 1995 = 1,000 birds). Neither of these Curlew counts, or any other recent data that English Nature is aware of, meet the criteria in the published SPA selection guidelines.
As part of the UK SPA Review, the RSPB recently requested that the Taw-Torridge Estuaries be considered as a potential SPA. However, after further discussion the RSPB have withdrawn their request for the site to be considered and now accept that there are insufficient data to support the case. RSPB have requested that English Nature reviews the status of the site within three years, in the light of future data collection."
The reference there to the selection guidelines might have remained obscure were it not for the industry of the claimant's representatives, because there has been produced a substantial two-volume publication, volume 1 of which is headed "UK SPA Network: its scope and content". This was published by the Joint Nature Conservation Committee ("JNCC") in 1990. Its introduction states:
"JNCC is responsible to the UK Government for research and advice on nature conservation at both UK and international levels, on behalf of the Countryside Council for Wales, English Nature and Scottish National Heritage, together with independent members and representatives from the Countryside Agency and Northern Ireland.
The European Union's Directive on the conservation of wild birds requires the selection of Special Protection Areas (SPAs) for certain birds. This review of the UK SPA Network has been undertaken by the JNCC together with the Environment and Heritage Service of Northern Ireland, the Countryside Council for Wales, Scottish Natural Heritage and English Nature.
SPA suites have been identified for each of 103 bird species. These collectively form the UK's SPA network - a contribution to the European Union's Natura 2000 network of protected sites. The UK SPA network is extensive, contains a wide variety of habitats and includes 243 sites throughout the UK. The network will make an enduring contribution to the conservation of Britain's birds as well as those migrating to other countries."
There is an executive summary at the beginning of the document. This states, so far as material:
"The SPA network presented in this report is the result of a review undertaken by the UK Joint Nature Conservation Committee together with the Environment and Heritage Service of Northern Ireland, the Countryside Council for Wales, Scottish Natural Heritage and English Nature. The network of sites has been formally recommended to government by the Joint Committee.
This review updates the assessment of UK SPAs published in 1992. Since that time there has been a range of new ornithological surveys undertaken throughout the UK, especially in the uplands and related to a number of species that were highlighted as being poorly represented in the national network proposed in the early 1990s. In view of new information and possible gaps, Government requested JNCC to review the UK SPA network with a view to recommending a definitive list of sites, identified against explicit selection guidelines."
It noted, too, that there were minor differences between the UK list of SPAs and Bird Life International's Important Bird Areas inventory. This, it was said, is unsurprising - indeed, it is to be expected - since different selection guidelines, criteria and priorities have been used to identify the respective site networks. It concludes:
"The UK SPA list more accurately reflects the obligations under the Birds Directive."
We find that in Part 3 of the document there are set out the guidelines. Stage 1(1) is said to be an area used regularly by 1% or more of the Great Britain (or in Northern Ireland, the all-Ireland) population of a species listed in Annex I of the Birds Directive in any season; (2) is said to be an area used regularly by 1% or more of the biogeographical population of a regularly occurring migratory species (other than those listed in Annex I) in any season; (3) is said to be an area used regularly by over 20,000 waterfowl or 20,000 sea birds in any one season. Then (4) reads:
"An area which meets the requirements of one or more of the Stage 2 guidelines in any season, where the application of Stage 1 guidelines 1, 2 or 3 for a species does not identify an adequate suite of most suitable sites for the conservation of that species."
Those guidelines clarify what is set out in the letter of 4 April 2001 to which I have already referred. It is clear that it is indeed to those guidelines that the letter is referring.
"There is evidence that FoE [Friends of the Earth] have campaigned for Taw-Torridge Estuary to be designated as an SPA (for the protection of some species of birds) ... , but there is no evidence that these campaigns are likely to result in relevant designation. It is not the function of this inquiry to resolve such matters, and I take particular note of the fact that the appropriate government agencies give no cause for me to believe that the sites are even potential candidates for designation. It follows that there is no evidence of a breach of the UK's obligation under Council Directives."
- that the obligations arising under Articles 3 and 4 of the Wild Birds Directive require specific measures to be taken in certain habitats of wild birds -
"must be upheld on this point. Articles 3 and 4 of the directive require Member States to reserve, maintain and re-establish habitats as such, because of their ecological value. Moreover, it follows from the ninth recital in the preamble to the directive that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. The obligations on Member States under Articles 3 and 4 of the directive therefore exist before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialised."
Then in paragraph 34 we find:
"The Spanish Government explains that the new road is necessary to improve access to the town of Santoña. Also, the new route is the best of various possible alternatives, mainly because it affects only a small proportion of the total surface area of the marshes.
35. These explanations cannot be accepted. As the Court stressed in Case C-57/89 Commission v Germany, although Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas, they do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of those areas.
36. The court finds in this connection that the construction of the new section of road C-629 between Argoños and Santoña involves a reduction in the surface area of the marshland, an effect that, moreover, is aggravated by the erection of a number of new buildings near this new section of road. These operations have resulted in the loss of refuge, rest and nesting areas for birds. In addition to the disturbances caused by the road works, the action in question has modified the ebb and flow of the tide, causing this part of the marshland to silt up.
37. Since, regard being had to the considerations of principle set out above, such action cannot be justified by the need to improve access to the municipality of Santoña, the complaint must be upheld."
That makes the point that the provisions of the Directive cannot be off-set by arguments of economic necessity or considerations of balance between what is required for a particular town in the interests of its inhabitants as against what is required to protect the birds in an area, which clearly ought to be the subject of an SPA. It is incidentally to be noted that in the context of that case there was no argument, and indeed there could be no argument, but that it concerns an area which quite clearly qualified as an SPA.
"It follows in my view that IBA89 not only constitutes scientific evidence, the necessity for which Germany appears to accept in principle, but was expressly designed for use in the application of the Directive. It is not itself conclusive or constitutive of a legal obligation, but can be relied upon in demonstrating the extent of a Member State's compliance therewith, both as regards the general obligation and specific sites. As regards an individual site, it is open to a Member State to produce better scientific evidence to show that it is not amongst the 'most suitable' for the conservation of Annex I species. Similarly, it is open to a Member State to produce contrary evidence to prove that the total figures for SPAs, in number and in area, which arise from IBA89, or from any other such list upon which the Commission relies, are erroneous."
The court effectively approved that approach. Paragraph 55 (page I-3069) states:
"It must first be observed that, contrary to the contention of the Kingdom of the Netherlands, Article 4(1) of the Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I, an obligation which it is not possible to avoid by adopting other special conservation methods.
56. It follows from that provision, as interpreted by the Court, that if such species occur on the territory of a Member State, it is obliged to define inter alia SPAs for them."
In paragraph 60 the court says:
"Moreover, while the Member States have a certain margin of discretion in the choice of SPAs, the classification of those areas is nevertheless subject to certain ornithological criteria determined by the Directive."
There is reference to paragraph 26 of Commission v Spain. Then (in paragraph 65) the court says:
"Third, it should be observed, that the Netherlands Government, while not questioning the scientific reliability of IBA 89, contends that the application of the criteria on which that report is based cannot, in view of their general character, lead to unequivocal results as regards the classification of SPAs. It has maintained that, although it applied the same criteria as those on which IBA 89 is based, it arrived in its inventory of sites potentially classifiable as SPAs as a result which was very different from that indicated by that report. At the hearing, however, it admitted that its criteria differed from those used in IBA 89.
66. In that regard, it is significant that the Kingdom of the Netherlands has to this very day failed to produce a single document from the national procedure for classifying SPAs which indicates the criteria which governed the designation of SPAs in that Member State.
69. In the circumstances, IBA 89 has proved to be the only document containing scientific evidence making it possible to assess whether the defendant State has fulfilled its obligation to classify as SPAs the most suitable territories in number and area for conservation of the protected species. The situation would be different if the Kingdom of the Netherlands had produced scientific evidence in particular to show that the obligation in question could be fulfilled by classifying as SPAs territories whose number and total area were less than those resulting from IBA 89.
70. It follows that that inventory, although not legally binding on the Member States concerned, can, by reason of its acknowledged scientific value in the present case, be used by the Court as a basis of reference for assessing the extent to which the Kingdom of the Netherlands has complied with its obligation to classify SPAs."
"It should also be noted that the inventory of areas which are of great importance for the conservation of wild birds, more commonly known under the acronym IBA (Inventory of Important Bird Areas in the European Community) includes the area in question. The Court of Justice has held that this inventory, although not legally binding on the member states concerned, contains scientific evidence making it possible to assess wether a Member State has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species.
26. It follows from the general scheme of Article 4 of the birds directive that, where a given area fulfils the criteria for classification as an SPA, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I to that directive."
Paragraph 45 dealt with a submission that Article 6 of the Habitats Directive could apply so as to permit some sort of development provided particular criteria were met. But the court said that could not be done if there had been a failure to designate as an SPA. Its reasons were as follows:
"45. It follows that, on a literal interpretation of that passage of Article 7 of the habitats directive, only areas classified as SPAs fall under the influence of Article 6(2) to (4) of that directive.
46. Moreover, the extent of Article 7 of the habitats directive states that Article 6(2) to (4) of that directive replace the first sentence of Article 4(4) of the birds directive as from the date of implementation of the habitats directive or the date of classification by a Member State under the birds directive, where the latter date is later. That passage of Article 7 appears to support the interpretation to the effect that the application of Article 6(2) to (4) presupposes the classification of the area concerned as an SPA.
47. It is clear, therefore, that areas which have not been classified as SPAs but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the birds directive."
"(1) Regulations 39, 41 and 43 do not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.
(2) The purposes referred to in paragraph (1) are
(e) preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(3) The appropriate authority shall not grant a licence under this regulation unless they are satisfied -
(a) that there is no satisfactory alternative, and
(b) that the action authorised will not be
detrimental to the maintenance of the
population of the species concerned at a
favourable conservation status in their
The appropriate authority is stated by the Regulations to be the agriculture minister (now the Secretary of State for DEFRA).
"I have taken into account all environmental information put to me in writing and at the inquiry, including the Environmental Statement produced in accordance with EC Directive No.97/11/EC, comments from statutory consultees, and representations made by all other persons about the likely effects of the Order. Weighing the totality of the disbenefits of the environmental effects of the Order, namely the impact of the bridge's intrusion into the Taw Estuary SSSI, and any possible effect on the risk of flooding in the area, against the overwhelming benefit to the predicted reduction in town centre traffic congestion, together with the expected economic benefits accruing to the North Devon Sub-Region, I come to the conclusion that none of the objections to the scheme on environmental, or on any other grounds, are sufficiently substantial to overcome the merits of the proposal. They do not materially affect my final recommendation."
In reaching that conclusion he dealt with otters specifically (in paragraph 7.49). He said this:
"It seems to me that the principal issue with regard to protected species under threat, on which the first part of this objection stands or falls, is whether or not it has been shown that actual otter resting places would be directly threatened by the scheme."
It is not surprising that that was his approach since that was the way in which the matter was put before him by Friends of the Earth. He continues:
"This may or may not be the case now, but I note from paragraph 5.56 above that this had been considered by the statutory body responsible for SSSIs who require mitigation measures to be undertaken to remove the threat before construction work begins, and that such action is a condition of the planning consent. It cannot be assumed that such conditions will not be observed and for this reason I conclude that this objection does not stand."