QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|HUMBER SEA TERMINAL LTD||(CLAIMANT)|
|SECRETARY OF STATE FOR TRANSPORT||(DEFENDANT)|
|ASSOCIATED BRITISH PORTS LTD||(INTERESTED PARTY)|
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 DRABBLE AND MR J MAURICI (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
MR NIGEL PLEMING QC AND MR STEPHEN TROMANS (instructed by Messrs Norton Rose) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
Ground 1 - Failure to comply with the Birds Directive
"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 a similar measure 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.
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."
Article 4(4) is important and the first sentence in particular. There is no definition in the Directive of "special conservation measures".
"3 Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4 If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted."
"Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later."
"The Habitats Directive was given effect in this country by the Conservation (Natural Habitats etc) Regulations 1994 (SI 1994/27161) ('the 1994 Regulations'). It made provision for the designation of SACs. It made no specific changes to procedure for classifying SPAs. However, it required the secretary of State to compile and maintain, 'in such form as he thinks fit' a register of 'European sites' in Great Britain (reg 11). 'European site' was defined as one of five categories of site under European requirements, including SPAs (reg 11(2)(d)). It must be removed if it ceases to be so categorised (reg 11(4)(b)). When a site is included in the register, the 'appropriate nature conservation body' must be notified immediately (reg 12); and they must notify owners and occupiers of land within the site (reg 13). An entry in the register relating to a European site is a local land charge (reg 14)."
Regulation 10 includes areas classified under the Birds Directive within its definition of "European Site ("ES"). Regulation 49(1) sets out the test which adverse development in such a site has to satisfy:
"49(1) If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), the competent authority may agree to the plan or project notwithstanding a negative assessment of the implications for the site."
"Having consulted English Nature, as his statutory adviser and nature conservation body under Regulation 48(3), the Secretary of state agrees that the project is likely to have a significant effect on the combined phase 1 and proposed phase 2 Humber Estuary Special Protection Area, the Humber Estuary Ramsar site and the possible Humber Estuary Special Area of Conservation."
There was no differentiation made in that paragraph between any effect which there might have been on the Phase 1 SPA from that which there might have been on the extension proposed as Phase 2 SPA. In paragraph 45 of the decision letter, the direct loss of 22 hectares of habitat would come from the proposed Phase 2 and the indirect loss of 5 hectares would come from outside both the actual SPA and proposed extension. The proposed extension was not within the scope of the definition of "European Site" in the Habitat Regulations, although that definition extends beyond those sites actually classified or designated under the two Council Directives.
"All National Nature Reserves (NNRs), terrestrial Ramsar Sites, Special Protection Areas (SPAs) and (in future) Special Areas of Conservation (SACs) are also SSSIs under national legislation. In addition, some SSSIs have been identified as potentially qualifying for SPA classification but are currently subject to further survey or consultation work before decisions can be taken about their classification. Similarly, candidate SACs will be identified on a list which the Government must send to the Commission by June 1995. For the purpose of considering development proposals affecting them, potential SPAs and candidate SACs included in the list sent to the European Commission should be treated in the same way as classified SPAs and designated SACs."
Paragraph C7 continues the same point:
"Regulations 48, 49 and 54 [of the Habitat Regulations] restrict the granting of planning permission for development which is likely significantly to affect an SPA or SAC, and which is not directly connected with or necessary to the management of the site. They apply to planning decisions taken on or after the date the Regulations come into force, regardless of when the application was submitted. They apply to classified SPAs, and to SACs from the point where the Commission and the Government agree the site as a Site of Community Importance to be designated as an SAC. They do not apply to potential SPAs or to candidate SACs before they have been agreed with the Commission, but as a matter of policy the Government wishes development proposals affecting them to be considered in the same way as if they had already been classified or designated (see paragraph 13 of this PPG). The Government has chosen to apply the same considerations to listed Ramsar sites."
"18. The Applicant determined that the proposed works would be likely to have a significant effect on the potential Humber Flats, Marshes and Coast Special Protection Area (SPA) and proposed Ramsar site and the possible Humber Estuary Special Area of Conservation (pSAC).
20. The conclusions of the Appropriate Assessment are that the proposal would have an adverse effect on the integrity of the proposed SPA and Ramsar site and pSAC. The proposed development is also close to an existing SPA and Ramsar site. There would be a loss of SPA, Ramsar and pSAC features, both as a result of the project and in combination with other projects and plans. It could not be demonstrated that the development would not have an adverse effect on the SPA/Ramsar internationally important population of birds."
The consequence was that alternative solutions and the need for imperative reasons of overriding public interest had to be considered. The Secretary of State's approach to this is clear from paragraphs 24 and 34 of the decision letter:
"24. Before giving consent to a project which has been assessed, as the Applicant has assessed it, as being likely to have an adverse impact on a designated site within the meaning of the Habitats Regulations, the Secretary of State must be satisfied that there are no alternative solutions to the scheme and that it should proceed for imperative reasons of overriding public interest.
34. The Secretary of State acknowledges that where a project has been identified as likely to have an adverse impact upon the integrity of a designated European conservation site he must determine whether there are imperative reasons of overriding public interest that the project be permitted. It is for the Secretary of State to assess the case for need in the public interest, which may be of a social or economic nature."
After concluding that there were no alternative solutions and that mitigation measures could not avoid an adverse impact, the Secretary of State concluded that there were imperative reasons of overriding public interest which justified the grant of consent.
"46. Moreover, the text 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) 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."
"49. Thus, the fact that, as the case law of the Court of Justice shows (see, in particular, Case C-355/90 Commission v Spain  ECR I-4221, paragraph 22), the protection regime under the first sentence of Article 4(4) of the birds directive applies to areas that have not been classified as SPAs but should have been so classified does not in itself imply that the protection regime referred to in Article 6(2) to (4) of the habitats directive replaces the first regime referred to in relation to those areas."
The ECJ continued:
"50. Moreover, as regards the Commission's argument concerning a duality of applicable regimes, it should be noted that the fact that the areas referred to in the previous paragraph of this judgment are, under the first sentence of Article 4(4) of the birds directive, made subject to a regime that is stricter than that laid down by Article 6(2) to (4) of the habitats directive in relation to areas classified as SPAs does not appear to be without justification.
51. As the Advocate General points out in paragraph 99 of his Opinion, a Member State cannot derive an advantage from its failure to comply with its Community obligations.
52. In that respect, if it were lawful for a Member State, which, in breach of the birds directive, has failed to classify as an SPA a site which should have been so classified, to rely on Article 6(3) and (4) of the habitats directive, that State might enjoy such an advantage.
53. Since no formal measure for classifying such a site as an SPA exists, it is particularly difficult for the Commission, in accordance with Article 155 of the EC Treaty (now Article 211 EC), to carry out effective monitoring of the application by Member States of the procedure laid down by Article 6(3) and (4) of the habitats directive and to establish, in appropriate cases, the existence of possible failures to fulfil the obligations arising thereunder. In particular, the risk is significantly increased that plans or projects not directly connected with or necessary to the management of the site, and affecting its integrity, may be accepted by the national authorities in breach of that procedure, escape the Commission's monitoring and cause serious, or irreparable ecological damage, contrary to the conservation requirements of that site.
54. Natural or legal persons entitled to assert before the national courts interests connected with the protection of nature, and especially wild bird life, which in this case means primarily environmental protection organisations, would face comparable difficulties.
55. A situation of this kind would be likely to endanger the attainment of the objective of special protection for wild bird life set forth in Article 4 of the birds directive, as interpreted by the case-law of the Court (see, in particular, Case C-44/95 Royal Society of the Protection of Birds  ECR I-3805, paragraphs 23 and 25).
56. As the Advocate General has, essentially argued in paragraph 102 of his Opinion, the duality of the regimes applicable, respectively, to areas classified as SPAs and those which should have been so classified gives Member States an incentive to carry out classifications, in so far as they thereby acquire the possibility of using a procedure which allows them, for imperative reasons of overriding public interest, including those of a social or economic nature, and subject to certain conditions, to adopt a plan or project adversely affecting an SPA.
57. It follows from the above that Article 6(2) to (4) of the habitats directive do not apply to areas which have not been classified as SPAs but should have been so classified."
"102. The duality of the regime for classified special protection areas, on the one hand, and those that should have been classified, on the other, as alluded to by the Commission, may be unproblematic, but it will create a certain incentive for Member States to classify SPAs if they thereby open up the possibility of deviating from the rigid requirements laid down by Article 4(4) of the birds directive (as interpreted by the Court).
103. Neither is it by any means the case that all regions, irrespective of their nature and quality, would be assessed under the strict requirements laid down by Article 4(4) of the birds directive, simply because they had not been classified as SPAs. On the contrary, such sites must be those that should have been classified as SPAs. They must be of a particular quality, characterised by a high degree of certainty in terms of their importance to the bird population. In accordance with paragraph 4 of article 4(1), it must be one of the most suitable territories in number and size for the conservation of the species. When a site qualifies as an area that should have been classified as an SPA, there is associated with this a certain judgment of unworthiness with regard to omissions in the fulfilment of the Member State's obligations under Article 4(1) and (2) of the birds directive. In all other regions, the duty of endeavour embodied in the second sentence of Article 4(4), which reads, "Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats", continues to apply."
Ground 2 - Inadequacy of the Environment Statement.
"8(1) Where this paragraph applies pursuant to paragraph 6(1), the Secretary of State shall direct the applicant to supply him with an environmental statement in such form as he may specify.
(2) The environmental statement shall include the following information -
(c) data required to identify and assess the main effects which the project is likely to have on the environment;
(9) The Secretary of State shall not consider an application for a harbour revision order unless the applicant complies with any direction under paragraph 8(1) and with any relevant requirements of paragraphs 10 to 14."
"4. A description of the likely significant effects of the proposed project on the environment resulting from:
- the existence of the project;
- the use of natural resources;
- the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the developer of the forecasting methods used to assess the effects on the environment.
5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.
[The description should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project.]"
"Where in accordance with regulation 49 (considerations of overriding public interest) -
(a) a plan or project is agreed to, notwithstanding a negative assessment of the implications for a European site, or
(b) a decision, or a consent, permission or other authorisation, is affirmed on review, notwithstanding such an assessment, the Secretary of State shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected."
"In this case, EN was able to advise that whilst there would be a likely significant effect there would not be an adverse effect... The re-alignment sites will not adversely affect any European site ..."
Ground 3 - Ensuring the coherence of Natura 2000
"5.1 Not to commence the development of the Outer Harbour or Quay 2005 until
(a) it has sufficient proprietary interest in the relevant land required for either the Outer Harbour or Quay 2005 Habitats Schemes as appropriate to enable it to carry out the works described in the Implementation Plan; and
(b) and consents which are required for the implementation of the relevant Habitats Schemes have been issued with the exception of the consents required for Chowder Ness which shall be secured by ABP as soon as reasonably practicable.
5.2 To deliver subject to Appropriate Assessment the relevant Habitats Schemes in accordance with the implementation Plan and the conditions of this Agreement."
The schemes are essentially the realignment works which I set out part of to give a flavour of the detail:
"• Removal of existing flood bank and the reconstruction of new flood defences to the rear of the site. The new defences will be constructed with a minimum crest width of 4m and a minimum height of 5.6m above ODN, in line with the agency guidance and to the Agency's reasonable satisfaction.
• Profiling of the site by between 0 to 1m resulting in the relocation of 94,000m³ of material which will be retained on site and incorporated into the new flood defences.
• Construction of appropriate breaches through the existing saltmarsh fronting the site."
The implementation plan provides details of the general mitigation measures and sets out the planned sequence of construction and timetables for the Habitats Schemes. Detailed timing will depend on the timing of consent approvals. The timetabling of works is set out though no start date is given. There are general mitigation provisions such as a Code of Practice. There are provisions for monitoring and review with a multi-party steering committee. If changes are said to be needed there is a general obligation to work together to achieve them. The plan could be amended with the agreement of the steering committee. There is an arbitration clause.
Ground 4 - In-combination effects
"(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which -
(a) is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of the site, shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives."
"HST's current application before the Secretary of State for a Harbour Revision Order involves the provision of two new berths for ships with a draught up to 8.5m, in addition to two existing berths and two berths already consented to but not yet in full operation. The Secretary of State notes that HST expected in 2001 that a provision of five berths at HST (whish would include the two current berths, the two berths already consented to and one further berth) would be expected to be fully utilised, and that in this case they would consider the possible provision of further berths at HST. He also notes that HST state that they have carried out initial feasibility studies for further berths at HST beyond the six currently existing, consented to and applied for."
Ground 5 - 24-hour access
"28(b) The Applicant's proposed works at Immingham would afford customers 24 hour access to the new berths, whereas the works proposed by HST offer access which is to a certain extent governed by the state of the tide. The Secretary of State accepts that customers value the ability to have vessel access to berths 24 hours of the day in preference to time slots which are dependent on the state of the tide."
Mr Straker submitted that the only evidence the Secretary of State had was that contained in the ES and the references amount to no more than a few assertions as to the advantage which 24-hour access gave.
"Most of the current trade through the port is with north west Europe and Baltic ports. The main goods include food and components to/from factories, which operate on the just in time principle. This means Ro/Ro ferries need to run to specific timetables and not be restricted by tides or lock congestion. This type of trade is ideally suited to Ro/Ro as it avoids the additional time involved for goods transported by Lo/Lo methods."
The brevity of the references shows rather an assumption that the reader does not need further elaboration of what is obvious. Twenty-four hour access enables vessels to arrive or depart without waiting for the tides; they do not have to stand off; their timetables are not interrupted; the port becomes more attractive to shipping lines and to the importers and exporters of goods. There was no evidence provided by the claimant to the Secretary of State or to the court suggesting that it was other than a significant advantage. That did not surprise me.
Ground 6 - Managing Natura 2000
"If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature) the competent authority may agree to the plan or project notwithstanding a negative assessment of the implications for the site."
In Commission Guidance of 2000 as to the application of Article 6 of the Habitats Directive it was said that in examining alternatives which better respected the site's integrity, a zero option should be considered as well as different designs or locations. Paragraph 25 of the decision letter states:
"25. The Secretary of State accepts the Applicant's conclusions that a do nothing option at Immingham, better use of existing facilities at Immingham or alternative designs for works at Immingham would not achieve the purpose of the project, which is the accommodation of increased ro-ro traffic including a new generation of larger super-ferries. The Secretary of State also accepts the Applicant's conclusions with regard to possible alternative developments at other local ports owned by the Applicant."
Ground 7 - Failure to identify the legislative objective
"(1) Subject to the provisions of this section and to the following provisions of this Act, there may, in relation to a harbour which is being improved, maintained or managed by a harbour authority in the exercise and performance of statutory powers and duties, be made by the appropriate Minister an order (in this Act referred to as a 'harbour revision order') for achieving all or any of the objects specified in Schedule 2 to this Act.
(2) Subject to the next following section, a harbour revision order shall not be made in relation to a harbour by the appropriate Minister -
(b) unless the appropriate Minister is satisfied that the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea [or in the interests of the recreational use of sea-going ships]."
Schedule 2 provides in paragraphs 3, 4 & 17:
"3. Varying or abolishing duties of powers imposed or conferred on the authority by a statutory provision of local application affecting the harbour, being duties or powers imposed or conferred for the purpose of -
(a) improving, maintaining or managing the harbour;
(b) marking or lighting the harbour, raising wrecks therein or otherwise making safe the navigation thereof; or
(c) regulating the carrying [on by others of activities relating to the harbour or of] activities on harbour land.
4. Imposing or conferring on the authority, for the purpose aforesaid, duties or powers (including powers to make byelaws), either in addition to, or in substitution for, duties or powers imposed or conferred as mentioned in paragraph 3 above.
17. Any object which, though not falling within any of the foregoing paragraphs, appears to the appropriate Minister to be one the achievement of which will conduce to the efficient functioning of the harbour."