England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 April 2005

Mr Justice Richards:

1. The claimants, as the trustees of the Fourth Duke of Westminster's 1964 Settlement, are the freehold owners of most of an area of land known as Halkyn Mountain (or Mynydd Helygain) in North East Wales which has recently been designated a Special Area of Conservation ("SAC") pursuant to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora ("the Habitats Directive") as implemented in the United Kingdom by the Conservation (Natural Habitats, &c) Regulations 1994 ("the Habitats Regulations"). The total area of the designated site is about 610 hectares. The principal reasons for its selection as a SAC are the presence of certain types of vegetation, in particular calaminarian grassland, and the presence of a large population of great crested newts.
2. The claimants challenge a decision taken by the defendant, the Welsh Assembly Government, on 26 March 2003 to include or retain Halkyn Mountain as a candidate SAC in a list submitted to the European Commission as part of the process that led to its designation as an actual SAC. The challenge is brought both on procedural grounds (inadequate consultation) and on substantive grounds (irrationality and failure to take into account relevant considerations). The defendant takes issue with those grounds and also contends that the proceedings have been rendered pointless by the designation of the site as an actual SAC and that in any event they were brought out of time.
3. The matter was listed before me for a "rolled up" hearing, i.e. as a hearing of the application for permission but with the substantive hearing to follow immediately if permission was granted. In the event I heard full argument and reserved my judgment.
4. This judgment is structured as follows: (1) the regulatory framework; (2) the factual history; (3) whether the proceedings have any useful purpose; (4) delay; (5) the consultation issue; (6) substantive issues: general; (7) the inclusion of Pen yr Henblas Quarry; (8) reliance on the presence of great crested newts; (9) reliance on the presence of calaminarian grassland; (10) the inclusion of Holywell Golf Course; and (11) conclusion.
5. I should mention at the outset that there has already been one set of judicial review proceedings between the same parties on a separate issue under the Habitats Regulations, namely the refusal of a licence for the translocation of the population of the newts from Pen yr Henblas (which forms part of the Halkyn Mountain SAC) to another site. Those proceedings were resolved by the Court of Appeal in favour of the defendant. They are relevant to the inclusion of Pen yr Henblas within the SAC and are considered further in that context.

Regulatory framework

6. The aim of the Habitats Directive, as set out in article 2, is to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States. By article 3, a coherent European ecological network of special areas of conservation is to be set up under the title Natura 2000. The network is to be composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II. Each Member State is to contribute to the creation of Natura 2000 in proportion to the representation within its territory of those natural habitat types and habitats. To that effect each Member State is to designate, in accordance with article 4, sites as special areas of conservation.
7. Article 4 provides:

"1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction. For aquatic species ranging over wide areas, such sites will be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction. Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.

The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site. That information shall include a map of the site, its name, location, extent and the data resulting from application of the criteria specified in Annex III (Stage 1) provided in a format established by the Commission in accordance with the procedure laid down in Article 21.

2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the five biogeographical regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States' lists identifying those which host one or more priority natural habitat types or priority species. …

The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.

3. The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.

4. Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most …."

8. Calaminarian grassland is one of the natural habitat types listed in Annex I but is not a priority habitat type. The great crested newt is one of the species listed in Annex II but is not a priority species.
9. Annex III, headed "Criteria for selecting sites eligible for identification as sites of Community importance and designation as Special Areas of Conservation", reads as follows:

"STAGE 1: Assessment at national level of the relative importance of sites for each natural habitat type in Annex I and each species in Annex II (including priority natural habitat types and priority species).

A. Site assessment criteria for a given natural habitat type in Annex I:

(a) Degree of representativity of the natural habitat type on the site.

(b) Area of the site covered by the natural habitat type in relation to the total area covered by that natural habitat type within national territory.

(c) Degree of conservation of the structure and functions of the natural habitat type concerned and restoration possibilities.

(d) Global assessment of the value of the site for conservation of the natural habitat type concerned.

B. Site assessment for a given species in Annex II:

(a) Size and density of the population of the species present on the site in relation to the populations present within national territory.

(b) Degree of conservation of the features of the habitat which are important for the species concerned and restoration possibilities.

(c) Degree of isolation of the population present on the site in relation to the natural range of the species.

(d) Global assessment of the value of the site for conservation of the species concerned.

C. On the basis of these criteria, Member States will classify the sites which they propose on the national list as sites eligible for identification as sites of Community importance according to their relative value for the conservation of each natural habitat type in Annex I or each species in Annex II.

D. That list will show the sites containing the priority natural habitat types and priority species selected by the Member States on the basis of the criteria in A and B above.

STAGE 2: Assessment of the Community importance of the sites included on the national lists:

1. All the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will be considered as sites of Community importance.

2. The assessment of the Community importance of other sites on Member States' lists, i.e. their contribution to maintaining or re-establishing, at a favourable conservation status, a natural habitat in Annex I or a species in Annex II and/or to the coherence of Natura 2000 will take account of the following criteria:

(a) relative value of the site at national level;

(b) geographical situation of the site in relation to migration routes of species in Annex II and whether it belongs to a continuous ecosystem situated on both sides or one or more internal Community frontiers;

(c) total area of the site;

(d) number of natural habitat types in Annex I and species in Annex II present on the site;

(e) global ecological value of the site for the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2, as regards both the characteristic of unique aspect of its features and the way they are combined."

10. Article 9 provides that the Commission shall periodically review the contribution of Natura 2000 towards achievement of the objectives set out in Article 2 and 3, and that in this context a SAC "may be considered for declassification where this is warranted by natural developments noted as a result of the surveillance provided for in Article 11". Article 11 requires Member States to undertake surveillance of the conservation status of the natural habitats and species referred to in Article 2 with particular regard to priority natural habitat types and priority species.
11. The Habitats Regulations contain, in Part II, detailed provisions concerning the conservation of natural habitats and habitats of species. Those of principal relevance to article 4(1) of the Habitats Directive are regulations 7 and 8:

"7.(1) On the basis of the criteria set out in Annex III (Stage 1) to the Habitats Directive, and relevant scientific information, the Secretary of State shall propose a list of sites indicating with respect to each site -

(a) which natural habitat types in Annex I to the Directive the site hosts, and

(b) which species in Annex II to the Directive that are native to Great Britain the site hosts.

…

(3) Where appropriate the Secretary of State may propose modification of the list in the light of the results of the surveillance referred to in Article 11 of the Habitats Directive.

(4) The list shall be transmitted to the Commission on or before 5th June 1995, together with information on each site including-

(a) a map of the site,

(b) its name, location and extent, and

(c) the data resulting from application of the criteria specified in Annex III (Stage 1),

provided in a format established by the Commission.

8.(1) Once a site of Community importance in Great Britain has been adopted in accordance with the procedure laid down in paragraph 2 of Article 4 of the Habitats Directive, the Secretary of State shall designate that site as a special area of conservation as soon as possible and within six years at most …."

12. In relation to Wales the functions of the Secretary of State are vested in the National Assembly for Wales and are discharged by the Welsh Assembly Government.

Factual history

13. The United Kingdom did not meet its obligation to submit a list of candidate SACs to the Commission by 5 June 1995 in accordance with article 4(1) of the Habitats Directive and regulation 7(4) of the Habitats Regulations. A list of 340 candidate SACs was submitted in June 1999. That list did not include Halkyn Mountain. There had been various ecological surveys of the area (in 1987, 1992 and 1995) but up to this point no part of the area had been considered to be of more than local importance.
14. The Directive's Stage 2 process (sometimes referred to as the "moderation") for the Atlantic Biogeographical Region was initiated at a meeting at Kilkee, Ireland, in September 1999. A further meeting was held in Paris in November 1999. At the Kilkee meeting the European Commission indicated that the sites on the United Kingdom's list provided insufficient representation of a relatively large number of Annex I habitats and Annex II species, and the United Kingdom was threatened with infraction proceedings. According to the formal advice subsequently given to the Government by the Joint Nature Conservation Committee ("JNCC"):

"At the Atlantic Region meetings there was general agreement that the UK had approached the selection of SACs in a logical and scientifically robust manner, and had succeeded in identifying the best sites for each interest feature. However, the list was judged to provide insufficient representation of a relatively large number of habitats and species. Three key issues were raised in relation to the UK site list:

(i) The proposed sites were judged to provide inadequate coverage of the geographical range or ecological variation shown by some habitats and species.

(ii) For some interest features the proportion of the total national resource contained within the site series was considered to be too low.

(iii) The UK had only listed selected habitats and species (i.e. those considered to be of outstanding European importance) as SAC interest features. The EC requires every Annex I habitat and Annex II species occurring on each site to be listed."

15. Following the Kilkee meeting the UK Government asked the statutory conservation agencies to undertake a thorough review of the list of candidate SACs. That process was started in October 1999. JNCC issued general guidance on making amendments to the UK list and the scale of change required. That was circulated to the relevant national bodies, including the Countryside Council for Wales ("CCW"), which were then responsible for drawing up revised site lists within their respective countries. The work involved listing additional interest features on existing sites and identifying new sites where necessary. High priority was given to finding sites which would fill geographical gaps in coverage. Effort was also directed towards increasing the proportional representation of interest features which were below the general threshold suggested by the relevant EC advisory body, namely at least 20% of the national resource of each habitat and species.
16. It appears from a December 2002 report referred to below (the Stevens report) that JNCC's guidance also suggested more specifically that up to six sites for calaminarian grassland should be selected in Wales to meet the requirements of the Directive, because the extent of representation in the initial proposals was considered to be insufficient (only four sites having been selected, collectively supporting less than 10% of the UK resource) and because Wales was identified as a geographical gap.
17. This was the context within which an ecological report on Halkyn Mountain was produced for CCW in November 1999, though the report was in fact based on a site survey carried out in August 1999. The report, National Vegetation Classification Survey of Halkyn Mountain and Holywell Common, Flintshire, by MV Prosser and HL Wallace ("the Prosser/ Wallace report"), concluded:

"Halkyn represents a major site for the metalliferous Festuca ovina-Minuartia verna community (OV37) [i.e. calaminarian grassland]. At least two sub-communities are represented as numerous stands over a wide area of the site with the most northerly expression, at Pen y Ball Top, extending a little beyond the boundary of the common. The study area is almost certainly the main locus for this scarce community in Wales …."

18. The report also identified other significant communities of vegetation on the site, but it is the calaminarian grassland that is of particular relevance. The report recommended that (i) the importance of the metalliferous vegetation of the site should be placed in a fuller context through the survey of other potential areas of OV37, especially where Minuartia verna was known to be associated with copper spoil; (ii) there should be a strong presumption against further actions to disturb existing areas of spoil on the site; (iii) any practical measures to limit burning and to regulate grazing should be considered; (iv) there should be a presumption against reactivation of the Pen yr Henblas quarry; and (v) any measures to increase public awareness of the value of Halkyn Common must be beneficial to its future as a rich and unusual environment and any such initiatives should be supported.
19. The findings in the Prosser/Wallace report were the main basis upon which CCW included Halkyn Mountain in a provisional list of additional candidate SACs which was submitted to JNCC in January 2000. JNCC then undertook an assessment of the various proposals received in order to check that a consistent approach towards site selection had been adopted across the United Kingdom and that the revised lists satisfactorily addressed the issues raised at the Kilkee and Paris meetings. The list, still including Halkyn Mountain, was approved and was formally submitted to the Government on 6 April 2000. JNCC's formal advice to Government described the list as "a comprehensive UK list of sites considered to be of SAC quality".
20. By a press release of 23 October 2000 and letters of 24 October 2000 the defendant gave notice of a public consultation exercise on the proposed additions to the list of candidate SACs in Wales. It was made clear that the initial selection of sites was based solely on scientific criteria and that the consultation was to be on the scientific rationale supporting individual site proposals. The time allowed for responses was until 4 December 2000. A request by the claimants for an extension of time was refused.
21. By a letter of 1 December 2000 the claimants objected in strong terms to the nature of the consultation exercise, complaining of inadequate research by CCW and a failure to allow them a reasonable opportunity to undertake the necessary research and evaluation to enable them to respond in detail to the proposals. It was suggested that the proposal was quota-driven rather than based on suitability or merit. The letter also set out principal preliminary grounds of objection to the proposal. Letters complaining about the inadequacy of the consultation (including the time allowed and the information made available) were also sent by Tarmac and RMC, operators of quarries in the area.
22. In a letter of 2 January 2001 to the local authority, Flintshire County Council, CCW indicated that the nature of the consultation exercise had been driven by the fact that the European Commission was threatening to re-open infraction proceedings against the United Kingdom in respect of failure to submit a sufficient list of candidate SACs. There was insufficient time before the EC deadline to notify all the land as SSSI and to consult all landowners individually, as had previously been done in relation to candidate SACs.
23. On 31 March 2001 the Government submitted its additional list of candidate SACs, including Halkyn Mountain, to the European Commission. The claimants' solicitors were notified of this in early April 2001. The letter of notification referred to minor amendments which had been made to the boundary of the site, and stated that "we anticipate that there will be further amendments to the final boundary following survey and evaluation".
24. In October 2001 the claimants made further representations to CCW, relying on two reports commissioned by them from an ecological consultancy, Christopher Betts Environmental Biology, which queried the findings in the Prosser/Wallace report and adduced additional scientific evidence relevant to the SAC designation. For convenience I shall refer to these as "the Betts reports" even though Dr Betts was not the sole author. They are both dated October 2001. The first Betts report, Halkyn Mountain Phytosociology Pilot Study, concluded:

"In summary, the results produced from the pilot study indicate that the vegetation of the areas examined has changed significantly since Prosser and Wallace's study and that the extensive, broad scale survey they undertook does not provide sufficient detail, firstly, to represent the mosaic pattern of plant communities found and, secondly, to identify the nature of the plant communities unequivocally. Detailed nature conservation assessment and evaluation of the site are not possible until such surveys are carried out. Whilst our results do indicate possible but limited affinities to four vegetation communities of relevance for SAC designation (… [including] Calaminarian Grasslands), this pilot study suggests that it is probably unsafe to make decisions relating to designations for nature conservation based on the Prosser and Wallace broad scale survey and, indeed, we note that Prosser and Wallace made no suggestion that it should be included in a SSSI or SAC …."

25. The second Betts report, Investigation of the Great Crested Newt Population Status in the UK from Published Sources, concluded inter alia that the great crested newt was widespread throughout Great Britain and quite probably much more numerous that was thought at the time it was added to protective legislation, and that the evidence gathered so far suggested a critical lack of knowledge about its population and that the species might have been listed over-cautiously.
26. On 11 April 2002 there was a site visit by Dr Betts and representatives of CCW to discuss the matters raised in the Betts reports. A series of conclusions and action points resulting from the site visit was sent by CCW to Dr Betts on 24 April.
27. In the light of Dr Betts's observations CCW decided to commission a further ecological survey, which was carried out in the period April-June 2002 and was the subject of a report by DP Stevens and others ("the Stevens report") published in December 2002 and considered further below.
28. On 24 July 2002 CCW wrote to the claimants to inform them of a further consultation exercise in respect of Halkyn Mountain:

"The Countryside Council for Wales has advised the Welsh Assembly Government that the land shown on the enclosed map hosts habitats and/or species of European importance.

I am writing to you, as owner or occupier of the land, seeking any comments or views you may have, on submission of the land to the European Commission as a candidate SAC.

The National Assembly for Wales intends to submit a revised list of candidate Special Areas of Conservation to the European Commission via the UK Government to comply with its obligations under the EC Habitats Directive.

The land shown as 'candidate Special Area of Conservation' was included in the list of sites submitted to the EC in March 2001, following a public consultation carried out by placing public notices in newspapers. We are inviting your views on the proposal to designate both this area of land and the proposed extensions to the candidate SAC (marked 'possible' SAC). May I also draw your attention to the fact that some areas will be deleted from the boundary; these are shown on the map.

…

Please send your comments to your local CCW office by 18 September 2002.

All representations made will be carefully considered by CCW and the Welsh Assembly Government …."

29. By a very lengthy letter of 16 September 2002 from their solicitors, the claimants objected to the inclusion within the SAC of areas marked red on an enclosed plan (referred to as "the Red Land"), which included Holywell Golf Course and Pen yr Henblas Quarry. The claimants also supported objections on behalf of the Crown and its mineral tenants in respect of certain other parts of the site. Subject thereto, no formal objection was lodged in connection with the proposed designation, but the letter made clear that the claimants were not thereby admitting that the relevant scientific criteria for the establishment of any part of Halkyn Mountain as a SAC had been satisfied. The grounds of objection with regard to the Red Land were set out in 21 numbered paragraphs, together with appendices. It was contended inter alia that the scientific criteria in Annex III to the Habitats Directive did not justify its inclusion based on comparison with other areas in the United Kingdom; that CCW had failed to disclose all the evidence upon which it relied in advising the defendant that the Red Land was of Community importance; and that any prejudice to habitat types or species by use of the Red Land for permitted purposes could be redressed (e.g. by the translocation of the great crested newts, for which an application had been made). Complaint was also made about the time allowed for consultation. The letter concluded:

"To the extent that CCW may subsequently disclose material requested by Grosvenor which requires further analysis and/or objections or comment by Grosvenor's scientists, Grosvenor reserves the right to introduce further comments and/or objections within an 8 week period from the date of delivery of the relevant information or documents."

30. CCW responded by an equally lengthy letter of 4 November 2002, dealing seriatim with the points made in the claimants' letter and its appendices. CCW stated that it had provided the claimants with all the reports and evidence currently available to it that it had relied on to justify the inclusion of Halkyn Mountain as an SAC, including all information currently available from the 2002 surveys, the report on which would be made available when it was published (see in particular paragraphs 2, 8, 17 and 20 of the letter). Taking issue with the contention that the current and previous consultation procedures were unlawful, CCW observed that "the estate's objections have been expressed extensively and eloquently over the last two years" and that the defendant had been kept informed of the estate's views throughout (paragraph 6). In similar vein the letter stated that dialogue with the claimants had been ongoing since 2000 and that the claimants had had a significant period since the original 2000 consultation to undertake their own ecological survey (paragraph 20). The letter ended:

"We note your wish for an additional period of 8 weeks for comment on any further information supplied by CCW. We will discuss this with WAG [i.e. the Welsh Assembly Government]."

31. On 8 November 2002 CCW forwarded to the Welsh Assembly Government a report on the outcome of the latest consultation. The report is referred to in a letter from CCW dated 28 February 2003 (see below), but there is no copy of it before the court. I do not know whether it made any reference to the point about an additional 8 weeks for comment on any further information supplied by CCW. That point does not feature in subsequent correspondence.
32. On 3 December 2002, by another very lengthy letter from their solicitors, the claimants replied to the detailed points made in CCW's letter of 4 November. The reply maintained the claimants' objections to the scientific justification for the designation of the site as a SAC and in particular for the inclusion of the Red Land within the SAC. One of the matters raised was the alleged inadequacy of the survey work. The letter also maintained the objection that there had been a lack of meaningful consultation, stating inter alia that "Grosvenor cannot be held to have been consulted genuinely when it has been unable to consider the outstanding material which has been requested but not yet supplied".
33. The one piece of material that is accepted to have been outstanding at that time was the Stevens report, which was not published until December 2002, though the results of the survey on which it was based had already been made available. The issued report, A Vegetation Survey and Conservation Assessment of Halkyn Mountain, Flintshire, stated in an opening summary:

"This report presents the findings of a Phase II (plant community) survey of Halkyn Mountain, a mid-altitude limestone plateau in north-east Wales (Flintshire), carried out during April-June 2002. The aims of the survey were to provide an accurate description of the vegetation cover and to confirm the habitat features for which the site has been selected as candidate Special Area of Conservation (cSAC) and notified as two separate Sites of Special Scientific Interest (SSSIs).

The most important habitat in terms of the site's selection as cSAC is metallophyte vegetation, also known as Calaminarian grassland. Halkyn Mountain has been selected as one of 16 cSACs in the UK where this habitat is a primary reason for selection. The present study confirms that the site supports the best and most extensive representative examples of this vegetation type in the north-east Wales orefield. The site is also selected as cSAC for its great crested newt (Triturus cristatus) population …."

34. Although the status of the area as an SSSI is not in issue in these proceedings, I should explain the reference in the Stevens report to two notified SSSIs. One small area, the Racecourse Mire, had been notified previously as an SSSI. In December 2002 Halkyn Mountain was notified as an SSSI. This was confirmed by CCW in September 2003, subject to the exclusion of certain parts of the area previously notified.
35. After a lengthy account of the survey methods and results, the Stevens report contained a discussion of management issues and concluding remarks. The concluding remarks made reference first to the historical background, namely the outcome of the Kilkee meeting and the guidance subsequently issued by JNCC as regards the selection of additional sites, including in particular the guidance that up to six sites for Calaminarian grassland should be selected in Wales. The report continued:

"Four sites were subsequently recommended for selection as cSACs in Wales to represent the geographical and ecological range of the best remaining examples of Calaminarian grassland in Wales. This selection included: two sites with specialist lichen interest on siliceous Lower Palaeozoic rocks in central-west Wales (one on mine spoil and one on river shingle, representing the mid Wales orefield), a mine spoil site with specialist bryophyte and fern interest on Ordovician tuffs and slates in north-west Wales (representing the Llanrwst orefield), and a site (Halkyn Mountain) on the Carboniferous Limestone in north-east Wales (representing calcareous swards with abundant Minuartia verna (OV37) which are characteristic of the north-east Wales orefield). The present survey findings confirm that Halkyn Mountain includes the best and largest examples of metallophyte vegetation in north-east Wales. Moreover, despite extensive vegetation surveys carried out by NCC/CCW over more than 20 years, no other sites with comparable areas of OV37 vegetation are known to occur in Wales."

36. There is nothing to show that the Stevens report resulted in any supplementary advice by CCW to the defendant, but the defendant's position is that the report simply served to confirm the basis of the advice already given. A copy of the report was provided to the claimants either in December 2002 or in January 2003 (Mr Kingston QC, in the course of his reply, stated on instructions from the claimants that it was in the January rather than the December). The claimants did not submit any comments on it by the date of the decision under challenge. It is apparent from a witness statement by Dr Betts that he was preparing to make further representations, including representations based on further fieldwork to be commenced in May 2003, but that the decision was taken long before those representations were ready for submission.
37. I have referred above to the claimants' letter of 3 December 2002. On 28 February 2003 CCW sent a lengthy response to that letter. The response began:

"We should remind you that in relation to the SAC process CCW is undertaking -

1. Provision of scientific advice first to the JNCC and thereafter to the Welsh Assembly Government (WAG) and in turn to DEFRA concerning the selection of sites for consideration as to whether or not they should be proposed by the UK to the European Commission as Special Areas of Conservation in accordance with the requirements of the Habitats Directive.

2. Administration on behalf of WAG of the consultation concerning the proposed SACs. In this respect CCW's primary role is to convey all representations and objections received to the WAG. In so far as CCW is able to resolve objections and provide clarification about the SAC process, we are endeavouring to do that. It is abundantly clear that the Estate advances an objection to the candidate and proposed SAC which has been copied to the WAG. Should further material be advanced in support of the estate's objections then it will be forwarded to the WAG."

38. The response went on to make detailed comments on various of the points made in the claimants' previous letter. Amongst the comments made, it is relevant to note that CCW treated the consultation prior to the first decision and the further consultation as if they formed part of a single process: "There have been two consultations on the proposal to designate Halkyn Mountain as a SAC, the first in October 2000 and the second in July 2002".
39. On 26 March 2003 the defendant decided to include the amended Halkyn Mountain site in the list of candidate SACs to be submitted to the European Commission. The decision was communicated to DEFRA on 7 April and transmitted to the Commission on 30 April. The claimants first learnt of the decision, however, when they received a letter dated 23 May 2003 from CCW. Referring to the consultation process initiated in July 2002, CCW's letter stated:

"I am writing to you further to my letter of 24 July 2002, which sought your views on proposals for amending the boundary of Halkyn Mountain cSAC. CCW and the Welsh Assembly Government have carefully considered all representations. The Minister has decided to include the amended site on the list of candidate Special Areas of Conservation sent to the European Commission."

40. On 6 June the claimants sent a pre-action protocol letter to the defendant, requesting the withdrawal of the decision and threatening judicial review. The defendant's reply, which was not sent until 16 July, informed the claimants for the first time of the dates on which the decision had been taken and the list of candidate SACs had been transmitted to the European Commission. The claimants lodged their claim form on 29 July.
41. On 24 October 2003 the area of the candidate SAC was amended further, as a consequence of the decision in September 2003 not to include certain land within the confirmed SSSI. The total area of the site as submitted to the Commission in March 2001 was some 578 hectares. The effect of the amendments to the boundaries of the site as submitted in April 2003 was to increase the total area to about 627 hectares. The further amendments communicated to the Commission in October 2003 had the effect of reducing the total area to about 610 hectares.
42. More recently there have been highly material developments concerning designation of Halkyn Mountain as a SAC. On 7 December 2004 the European Commission adopted a list of Sites of Community Importance for the Atlantic Biogeographical Region, pursuant to article 4(2) of the Habitats Directive. That list included Halkyn Mountain in the form finally communicated to the Commission. Thereafter, on 13 December 2004, the Welsh Assembly Government designated all Welsh Sites of Community Importance, including Halkyn Mountain, as Special Areas of Conservation in accordance with article 4(4) of the Habitats Directive and regulation 8(1) of the Habitats Regulations. Those developments raise the question, considered below, whether any useful purpose is served by the continuation of the present proceedings.

Whether the proceedings serve any useful purpose

43. According to the claim form, the decision under challenge is the defendant's decision dated 26 March 2003 to submit Halkyn Mountain as a candidate SAC. The first issue that needs to be considered is whether the claim could achieve any useful purpose even if the claimants were successful in their contentions that that decision was unlawful. The decision has been effectively superseded by the European Commission's decision to adopt a list of sites including Halkyn Mountain and by the defendant's consequent designation of Halkyn Mountain as an actual SAC. Neither of those subsequent decisions is or could be challenged in these proceedings. The proceedings cannot therefore directly affect the status of Halkyn Mountain as a SAC.
44. Mr Jarman QC for the defendant submitted that in those circumstances the proceedings had become pointless. In the circumstances this was not a particularly attractive position for the defendant to adopt, but it is one that has to be considered on its merits.
45. Any challenge to the European Commission's decision to adopt the list of sites has to be brought by means of a direct action before the Court of First Instance in Luxembourg. At the hearing my attention was drawn to two such challenges pending before that court, though in relation to different matters and raising very different issues from those arising here. Since the hearing I have been sent a copy of an application lodged by the claimants themselves under articles 230 and 231 of the EC Treaty for annulment of that part of the Commission's decision of 7 December 2004 that relates to Halkyn Mountain. The application has been allocated the number T-57/05 in the Court of First Instance.
46. The arguments advanced in support of the application include contentions that the Commission encouraged or acquiesced in a public participation exercise by the Member States that was flawed or inadequate; that no consideration was given to economic and social requirements; and that the decision is based on erroneous technical information and Halkyn Mountain was wrongly declared to be a site of Community importance in respect of the presence of the great crested newt and calaminarian grassland. The matters relied on against the Commission are in large measure the same as those relied on against the Welsh Assembly Government in the present proceedings. The application makes reference to these proceedings and makes additional complaint about the fact that the Commission proceeded to a decision even though it knew that the case in the national court was due to be heard within a month.
47. In anticipation of the application that has now been made, Mr Kingston contended at the hearing before me that the claimants' case before the Court of First Instance would be assisted if this court were to find that the Welsh Assembly Government had acted unlawfully in deciding to include Halkyn Mountain in the list of candidate SACs submitted to the Commission, and that the continuation of the present proceedings did therefore have a useful purpose.
48. I do not think that it would be right for me to rule on whether the claimants' case against the Commission would be assisted, as a matter of practical reality if not of legal theory, by findings against the Welsh Assembly Government in the proceedings before this court. It would be for the Court of First Instance to decide what, if any, assistance was to be derived from such findings. I think it sufficient for present purposes that the claimants would seek to rely on such findings in its case before the Court of First Instance. That fact seems to me to give a legitimate purpose to the continuation of the present proceedings. If the challenge to the decision of the Welsh Assembly Government were indeed well founded, the claimants ought to have the opportunity to deploy the point in support of their challenge to the Commission's decision.
49. A further consideration is that, if the claimants' challenge to the decision of the Welsh Assembly Government were well founded, that might assist them in an attempt to persuade the Commission to reconsider the inclusion of Halkyn Mountain in the adopted list. I acknowledge that the Habitats Directive does not contain any express power to reconsider in circumstances of this kind. The only express provision, in article 9, is that a SAC "may be considered for declassification where this is warranted by natural developments noted as a result of the surveillance provided for in article 11", which does not cover the circumstances of the present case. But it would not be right to exclude the possibility that the Commission might be found to have an implied power to declassify or otherwise to amend the list adopted under article 4(2) if it were shown that a Member State had acted unlawfully in including a site in the list of candidate SACs submitted to the Commission. Thus the claimants' application to the Court of First Instance might not be the only way of securing the removal of Halkyn Mountain from the adopted list.
50. For those reasons I consider that I should proceed to determine the issues raised in the present case.

Delay

51. The defendant takes two main points on delay: (1) many of the issues raised in these proceedings could and should have been raised by way of challenge to the decision of 31 March 2001 to submit a list of candidate sites that included Halkyn Mountain, and it is far too late too raise those issues now; and (2) in any event the challenge to the decision of 26 March 2003 to submit a revised list that included Halkyn Mountain was brought outside the 3-month time-limit and time should not be extended.
52. As regards the first point, Mr Jarman submitted that the 2001 decision was not a preliminary or provisional decision but a substantive decision with legal effects, constituting compliance with the defendant's duty under article 4(1) of the Habitats Directive and regulation 7(1) of the Habitats Regulations. In his oral submissions he accepted that, whatever the limitations envisaged at the outset, the further consultation exercise was in practice not just about the boundaries of the site but also about the scientific basis for designation of the site as a whole; and that (subject to the second argument on delay) it was open to the claimants to challenge the later decision by reference to any procedural defect in the further consultation process or by reference to any scientific information that came to light during that process. Other points, however, could and should have been raised by way of challenge to the first decision.
53. Mr Kingston, on the other hand, contended that the defendant intended the list submitted in April 2003, rather than that submitted in March 2001, to be the effective discharge of its obligations under the Habitats Directive and the Habitats Regulations. In any event, whatever the precise status of the first decision under the Habitats Directive and Habitats Regulations and whether or not it was amenable to judicial review at the time, the fact is that the defendant undertook a subsequent consultation exercise and took a further decision with regard to the status of the site as a whole. That position was fairly reflected in CCW's letter of 28 February 2003, which referred to the two consultations as relating to "the proposal to designate Halkyn Mountain as a SAC", and in the defendants' own response to the pre-action protocol letter, in which it declined to respond to criticisms of the earlier decision, stating that "it has in any event been overtaken by a thorough review of the boundaries of the site in the course of which the issue of whether all the land within it qualifies as a cSAC has [been] open to being considered". In those circumstances it must be open to the claimants to raise all relevant issues in a challenge to the fresh decision.
54. I find it difficult to see how precisely the two decisions (and indeed the amendment to the boundaries of the site that was notified in October 2003, after the second decision) are to be accommodated within the terms of the Habitats Directive and the Habitats Regulations. Neither instrument contains express provision for amendment of a list by a Member State once the list has been submitted to the Commission. On the other hand, the Commission does not seem to have objected to the provision of amended lists, and the Natura 2000 standard data form contemplates that the correction of errors and the provision of updated information may occur.
55. In my judgment the first list did have a formal legal status, in that it was submitted pursuant to article 4(1) of the Habitats Directive and regulation 7 of the Habitats Regulations, and the decision to submit that list was amenable to judicial review at the time. In practice, however, the defendant proceeded on the basis that the further consultation exercise would lead to a fresh decision that was capable of leading to an amendment to the list previously submitted, and amendments were thereafter submitted in further purported compliance with the Directive and the Regulations. Moreover the Commission accepted the amended list and adopted the sites under article 4(2) of the Directive. I would be very reluctant to hold that what happened in practice lacked an adequate legal foundation. The answer may lie in an implied power under the Directive and Regulations to amend a list previously submitted, provided that it is done before the adoption of a site by the Commission under article 4(2). Alternatively, in the light of the provision in article 4(1) that "where appropriate, Member States shall propose adaptation of the list in the light of the surveillance referred to in article 11", there may be an implied power to propose to the Commission that the list be amended in other circumstances too.
56. Whatever the precise analysis, the fresh decision should in my view be treated as having a similar legal status to the first decision and as being equally amenable to judicial review. And even though the further decision confirmed the first decision, save for amendments to the boundaries of the candidate site, I take the view that it effectively superseded the first decision and that a challenge to it by way of judicial review should not be precluded or restricted by reference to the failure to challenge the first decision.
57. There remains the second point on delay, namely the alleged failure to challenge the fresh decision within the 3-month time limit. I regard that as a bad point. The claimants were informed of the decision only towards the end of May 2003, some two months after the decision was taken. They reacted rapidly, sending a pre-action protocol letter in early June and lodging their claim for judicial review at the end of July (just over two months after they had been informed of the decision and less than two weeks after receiving the defendant's reply to the pre-action protocol letter). If the grounds for the claim arose at the date when the decision was communicated, then the claimants acted promptly in bringing the challenge and were within the 3-month time limit. If the grounds for the claim arose at the date when the decision was actually taken, then the claimants were outside the 3-month time limit but, having regard to all the circumstances (including in particular the fact that they acted promptly once notified of the decision), I have no hesitation in exercising my discretion so as to extend time. Either way, therefore, the defendant fails in its attempt to block the claim on grounds of delay in challenging the fresh decision.
58. That makes it unnecessary for me to consider a further submission by Mr Kingston to the effect that the claimants' challenge is to the transmission of the list to the Commission, which took place only on 30 April 2003 (less than 3 months before the claim for judicial review was lodged) and that it was the transmission rather than the decision to transmit which produced legal effects and was therefore the reviewable act: cf. the distinction in R (Burkett) v. LB Hammersmith and Fulham [2002] UKHL 23, [2002] 1 WLR 1593 between a decision to grant planning permission and the actual grant of planning permission.

The consultation issue

59. It is common ground that there is no duty under the Habitats Directive or the Habitats Regulations to consult those liable to be affected by designation of a site as an SAC. Nevertheless the defendant did decide to consult; and it is again common ground that, having gone down that line, the defendant was required to undertake a proper consultation exercise. The claimants' case is that the exercise in fact undertaken was unfair and insufficient. The defendant denies this, contending that what is required by way of a proper consultation depends on the circumstances of the particular case and that the consultation here was both fair and sufficient.
60. For the claimants, Mr Kingston cited R (Capenhurst and Others) v. Leicester City Council [2004] EWHC 2124 (Admin) for a statement of relevant principles. That case concerned consultation by a council prior to making a decision to cease funding certain voluntary bodies. Silber J held that, irrespective of whether there was an obligation to consult, if the council did actually consult the relevant bodies it had to do so fairly. As to the test of what constitutes a fair consultation process, he referred to a passage in the judgment of Lord Woolf MR in R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 where it was stated (at paragraph 108) that (i) consultation, to be proper, must be undertaken at a time when proposals are still at a formative stage, (ii) it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response, (iii) adequate time must be given for this purpose, and (iv) the product of consultation must be conscientiously taken into account when the ultimate decision is made. He also referred to a passage in the speech of Lord Mustill in R v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (at 550) to the effect that fairness will very often require that a person is informed of the gist of the case which he has to answer. He stressed that the particular demands of consultation vary according to the circumstances. On the particular facts of Capenhurst, he held that there had been inadequate consultation. Mr Kingston sought to make various factual comparisons between the present case and Capenhurst, but I do not consider that to be a particularly useful exercise.
61. Mr Kingston's skeleton argument also referred to R v. Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 All ER 164, but what was said by Webster J in that case does not add materially to the statement of principles given in Capenhurst by reference to later authorities.
62. Mr Kingston submitted that in order to meet the requirements for a fair consultation in accordance with the principles stated in Capenhurst it is important that those consulted are able to inspect the data and underlying information that the proposal relies on and that the background information is in an organised and readily understood format. It should not be necessary to engage in a paperchase: cf. the observations in Berkeley v. Secretary of State for the Environment [2001] 2 AC 603 at 617C-H and R (Lebus and Others) v. South Cambridgeshire District Council [2002] EWHC 2009 (Admin) about the need for a composite document in the context of environmental impact assessments.
63. It is submitted that the first consultation, in 2000, was inadequate in itself both as regards the time allowed for representations and as regards the amount of information made available. I accept that submission and do not think it necessary to elaborate upon the issue. The crucial question is whether there was adequate consultation overall, having regard to the formal consultation in 2002 and other events following the original consultation in 2000.
64. The claimants' case is that the 2002 consultation was similarly defective. It started on 24 July and required comments by 18 September. This was an inadequate period for representations, especially given that it covered the main holiday period of the year. Further, the data relied on in support of the proposal was not set out in a proper form and the Stevens report was not published until December, after the consultation period had closed and after the date of CCW's November 2002 report to the defendant on the outcome of the consultation. Indeed, the fact that the highly relevant Stevens report was not available to the claimants at the time of the consultation is sufficient in itself to demonstrate the manifest inadequacy of the consultation process. Moreover the claimants were not alone in expressing concern about the nature of the consultation process: in representations dated 17 September 2002 on behalf of the Crown Estate Commissioners and their mineral tenants, Tarmac and RMC, the deadline of 18 September was likewise castigated as unreasonable and complaint was made about the failure to provide the scientific evidence relied on to justify the proposal and to allow an adequate opportunity to assess and comment on it. In so far as there was a continuing opportunity to make representations after the close of the consultation period, that was incapable of curing the inadequacies of the consultation process itself.
65. In the course of his submissions Mr Kingston drew together the following points as having particular relevance to the consultation issue: (1) Designation as an SAC has potentially draconian effects, in that there is a potential for revocation of existing planning permissions, the exercise of compulsory purchase powers and the imposition of a management regime. (2) A series of earlier surveys had suggested that the site was only of local importance, yet the SAC proposal would catapult it into the upper echelons of statutory protection. Such a dramatic change made it particularly important for the defendant to undertake consultation in a conspicuously fair and open way. (3) The site is large and complex, which contributes to the need for a careful, thorough and open consultation process. (4) Potential designation raises a series of questions requiring careful consideration and the answers to which should be capable of being ascertained through the consultation process. Further, since the decision has to be based on scientific judgment, an important part of the consultation process is that judgments for and against should be fully informed, which makes the denial of relevant information the more significant. In connection with these aspects of the consultation issue, reliance is also placed on Dr Betts's comments on the lack of scientific justification for the designation.
66. For the defendant, Mr Jarman stressed that consultation does not involve a dialogue or debate on each issue, but a reasonable opportunity for views to be expressed. He submitted that such an opportunity was given and that there was proper consultation. He pointed out that the case is concerned with the application of a set of scientific criteria requiring the exercise of judgment, in respect of which the defendant has statutory advisers. The claimants participated in the first consultation process in 2000 and did not in fact seek to challenge the decision to include Halkyn Mountain in the list of candidate SACs in 2001. There was further consultation in 2002. The claimants, who had been receiving their own scientific advice from Dr Betts during 2001, made representations both before and after the formal end of the consultation process in September 2002, and all representations were forwarded by CCW and considered by the defendant. All the site-specific scientific information on which CCW's advice and the defendant's decision were based was disclosed to the claimants. The defendant was entitled and bound to have regard to the time constraints arising from the Commission's pressure. In the circumstances it was reasonable for the defendant to proceed to a decision notwithstanding any ongoing research or outstanding scientific analysis on the part of the claimants' advisers.
67. In my judgment the consultation process, taken as a whole, was more than adequate and did give the claimants a fair opportunity to put forward their representations on the proposal and on the matters relied on in support of it.
68. Although the consultation was reopened or continued after the initial decision had been taken to include Halkyn Mountain in the list of candidate SACs, and in that respect might be said not to have taken place at a time when the proposals were still "at a formative stage" (to use the expression of Lord Woolf in ex parte Coughlan), I am satisfied that it was a genuine consultation exercise undertaken with the possibility in mind that, as a result of the representations received, Halkyn Mountain might be excluded from the revised list or its boundaries might be amended. Thus the existence of the initial decision did not vitiate the subsequent consultation process.
69. Although the formal consultation period was stated to run from 24 July 2002 to 18 September 2002, I think it unrealistic on the facts of this case to treat that period as representing the temporal limits of the further consultation exercise. The reality is that the claimants and CCW had been engaged in dialogue since the initial consultation in late 2000 and the inclusion of Halkyn Mountain in the list submitted to the Commission in March 2001, and that that dialogue continued through 2002 and into 2003. It included the making of representations in October 2001 in reliance on the reports commissioned from Dr Betts, and the discussions that took place between Dr Betts and representatives of CCW in April 2002, which led to the commissioning of the further ecological survey that was carried out in April-June 2002 and was the subject of the Stevens report in December 2002. The dialogue also included the lengthy correspondence between the claimants and CCW not just within the formal consultation period in 2002 but also thereafter, from early November 2002 to late February 2003. All this preceded the decision of 26 March 2003 to include the amended Halkyn Mountain site in the revised list to be submitted to the Commission. It is not to be equated with the informal contacts or post-decision discussions that were held in Capenhurst not to be an adequate substitute for proper consultation before the decision was taken. It was an ongoing process of receipt and consideration of representations prior to the taking of the decision.
70. It is true that the claimants did not know when, beyond the stated date of 18 September 2002, the final cut-off point might be. But they must have been aware of the background pressure from the Commission and have appreciated that it could not be an indefinite process. In their letter of 16 September 2002, whilst complaining about the inadequacy of the formal consultation period, they reserved the right to make further comments or objections within an 8 week period from the date of delivery of further information or documents. No such extension of that kind was agreed, but equally it was not refused; and in practice, as I have said, the exchanges continued after that date. Even on the basis that the claimants received the Stevens report in January 2003 rather than December 2003, in practice they had 8 weeks in which to make further representations in relation to it before the decision was taken. CCW's letter of 28 February 2003 stated in terms that should any further material be advanced in support of the claimants' objections it would be forwarded to the defendant. But the claimants made no further representations, and it is clear from the evidence of Dr Betts that any further representations were a distant prospect. Dr Betts makes it clear that he would have wished to have at least another season to survey the site more thoroughly and to analyse the data.
71. In the circumstances it was not unreasonable or unfair for the defendant to take the view that an adequate period for representations had been allowed and to proceed with the making of a decision.
72. As to the adequacy of the information provided, the basis upon which Halkyn Mountain had been included in the original list and was proposed to be retained as a candidate SAC was known to the claimants. Further, they were in possession of all the material relied on to justify its inclusion. CCW's letter of 4 November 2002 confirmed that all the reports and evidence currently available, including the information from the 2002 surveys, had been provided. The only matter outstanding at that time was the Stevens report based on the 2002 surveys, which was provided following its publication in December 2002.
73. In my view it was not necessary for the material relied on to be presented in the same organised or composite form as is required for an environmental statement under the regime relating to environmental impact assessments. That regime has its own particular policy considerations and imposes its own special requirements. What was said in that context in Berkeley and Lebus, to the effect that a paperchase is not an adequate substitute for a proper environmental statement, cannot be applied across to the present context. In this case there was a sufficient indication of the reasons for the proposal, and sufficient provision of underlying information, to meet the requirements of a proper consultation exercise.
74. It must also be borne in mind that the claimants had the expert assistance of Dr Betts, who was fully capable of considering and commenting on the information available, including the results of the 2002 survey - a survey carried out as a result of discussions between him and CCW. In so far as the claimants needed to consider not just the results of the survey but the analysis and judgments contained in the Stevens report, the fact is that they did receive that report following its publication in December 2002 and they could have submitted Dr Betts's comments on it within the 8 weeks they had reserved to themselves for the purpose.
75. Given that the Stevens report confirmed the basis of the advice already given to the defendant by CCW, it was unnecessary for CCW to give supplementary advice to the defendant on the basis of the report, let alone to prepare some kind of supplementary document for consideration by the claimants. It was sufficient to provide the claimants with the Stevens report itself. If the claimants had made further representations after CCW's letter of 28 February 2003 and those representations had been forwarded on to the defendant as CCW said would be done, a question might then have arisen as to whether the defendant needed also to obtain CCW's further advice on those representations. In the absence of any such further representations, however, the situation did not arise and it is unnecessary (and would be speculative) to consider what might have happened had it arisen.
76. The claimants had made extensive representations and had received equally detailed responses to those representations, showing how carefully the representations were taken into account. Among the many matters raised by the claimants was the contention that CCW had failed to carry out sufficient surveys or to permit the claimants the time they needed to undertake surveys of their own. So their position on this was clear; and it was for the defendant, with the benefit of CCW's advice, to judge whether the existing surveys were sufficient or whether further time should be allowed. Again I consider that it was not unreasonable or unfair of the defendant to proceed to a decision without carrying out further surveys or allowing time for further surveys.
77. For all those reasons I reject the claimants' procedural argument that the decision should be quashed for lack of proper consultation. I move to consider the substantive issues.

Substantive issues: general

78. The claimants point to the dramatic change in approach to Halkyn Mountain following the Kilkee meeting in September 1999 and the pressure brought to bear upon the United Kingdom to list further candidate SACs. Halkyn Mountain had previously been surveyed on a number of occasions but had never been considered to be of more than local interest. The area had not been notified as an SSSI. Two nearby areas were SSSIs, but they were small and their interest lay in features that are not material for present purposes. Within a period of about three months after the Kilkee meeting, however, Halkyn Mountain was being put forward as a possible SAC, as part of a move that saw the total number of proposed SACs in Wales more than double (from 40 to 86).
79. The claimants contend that nothing has been adduced to show that the scientific judgments underpinning the original list, i.e. excluding Halkyn Mountain, were wrong; and that the haste to produce a further list of candidate SACs which did include Halkyn Mountain was at the expense of a proper scientific justification. The Prosser/Wallace report, on which principal reliance was placed for the first decision, did not recommend that Halkyn Mountain should be a SAC. Nor is SAC status supported by the later evidence. Criticism is made of the reliance on calaminarian grassland and great crested newts as reasons for the inclusion of the site at all, and of the extent of the site put forward by reference to them. It is pointed out that calaminarian grassland occurs only in small fragmented stands (on former mineral spoil areas) which, according to the 2002 survey, extend in total to 12 hectares out of the 610 hectares of the SAC. The ponds and surrounding habitat required by great crested newts also take up only a proportion of the total site.
80. Against the background of that general theme, a number of specific issues are raised, namely that (i) the inclusion of Pen yr Henblas within the candidate SAC did not have proper regard to the existing planning permission or to the possibility of translocation of the great crested newts to another site; (ii) the decision to include Halkyn Mountain as a candidate SAC because of its great crested newt population was in any event unreasonable; (iii) the decision to include it as a candidate SAC because of its calaminarian grassland was also unreasonable, or it was unreasonable to do so in respect of such a large area; and (iv) the inclusion of the whole of the Holywell Golf Course was unreasonable. I shall consider each of those issues in turn.

The inclusion of Pen yr Henblas Quarry

81. The claimants' argument under this head ties in with matters considered by Pitchford J and the Court of Appeal in the previous set of judicial review proceedings between the parties: see R (Newsum and Others) v. Welsh Assembly Government [2004] EWHC 50 (Admin) and [2004] EWCA Civ 1565. In those proceedings the claimants challenged a refusal by the Welsh Assembly Government to grant a licence to translocate the population of great crested newts from Pen yr Henblas Quarry (within the area of the SAC) to a site a few miles away and outside the SAC. Pitchford J quashed the defendant's decision but the Court of Appeal allowed the defendant's appeal, holding that the decision was lawful. The issue under consideration arose independently of the site's status as a candidate or actual SAC.
82. It was common ground that, subject to the position under the Habitats Regulations, the claimants were entitled to carry out quarrying at Pen yr Henblas, for which they had obtained a certificate of lawful use or development under section 192 of the Town and Country Planning Act 1990.
83. Their difficulty under the Habitats Regulations was the impact that quarrying would have on the population of great crested newts, a protected species. There are three provisions of principal relevance:

i) Regulation 39 makes it an offence "(a) deliberately to capture or kill a wild animal of a European protected species … or (d) to damage or destroy a breeding site or resting place of such an animal".

ii) Regulation 40 contains various statutory defences, including a provision in regulation 40(3)(c) that a person shall not be guilty of an offence by reason of "any act made unlawful by [regulation 39] if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided".

iii) Regulation 44(1) confers an exemption from liability under regulation 39 in respect of "anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority". The purposes are listed in regulation 44(2) and include "(c) conserving wild animals …" and "(e) preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature …". The appropriate authority in the case of a licence under (2)(c) is CCW, and in the case of a licence under (2)(e) is the Welsh Assembly Government.

84. The claimants applied to the Welsh Assembly Government for a licence under regulation 44(2)(e) to translocate the population of great crested newts from Pen yr Henblas to the alternative site in order to preserve the newts. The Welsh Assembly Government refused a licence, on the basis that preservation of the newts was not itself an imperative reason of overriding public interest. The Court of Appeal upheld that decision. What matters here is not the extensive reasoning in support of that conclusion but two subsidiary observations by the Court of Appeal.
85. First, the claimants' position was that, even in the absence of any licence, they would have an arguable defence under regulation 40(3)(c) if they carried on with quarrying activities at Pen yr Henblas. As to that, Waller LJ (giving the leading judgment, with which the other members of the Court of Appeal agreed) stated:

"8. … I do not myself think that the question whether the Trustees if they chose to quarry will be committing an offence is a question which needs to be answered, or indeed should be answered. It is sufficient, and no one I think would dispute this, that it is certainly arguably that the circumstances may be such that they might not be committing an offence, and it is certainly possible that the Trustees will act in accordance with the planning permission, whether or not they obtain a licence to relocate the [great crested newts]. Thus there is a risk that operations will take place which will kill [great crested newts] or destroy the breeding ground of [great crested newts]."

86. In paragraph 15 he made similar observations when considering Pitchford J's approach to regulation 39, and went on to state:

"I think the judge put it correctly when he said that he was bound to approach the construction of regulation 44 with an understanding that the Directive and the regulations both recognise the possibility that a lawful operation could cause serious incidental harm to a protected species and the breeding sites thereof."

87. In paragraph 16 he stated that the appropriate authority would be bound to approach its consideration of whether to grant a licence on the same basis. It would not be open to the authority simply to take the view that there was a satisfactory alternative of not carrying out that which the Trustees had planning permission to do.
88. Secondly, the Court of Appeal raised the question whether the application for a licence should not have been made to CCW under regulation 44(2)(c) rather than to the Welsh Assembly Government under regulation 44(2)(e). It seems that CCW had advised that an application should be made under regulation 44(2)(e) and that the Welsh Assembly Government had not sought to correct that advice. Since matters had proceeded in the way they had, the Court of Appeal dealt with the lawfulness of the decision under regulation 44(2)(e). But Waller LJ went so far as to say, in paragraph 27, that "I am inclined to feel that an application under regulation 44(2)(c), if made to the CCW, should succeed …".
89. The claimants have since made an application to CCW for a licence under regulation 44(2)(c). My understanding at the time of writing this judgment was that no decision had been made on that application. But I have been informed just before handing down the judgment that the application was in fact refused.
90. In the grounds of claim the claimants contended that it was premature to include Pen yr Henblas pending the final determination of the proceedings for judicial review in respect of the translocation licence. At the hearing before me, however, the argument was put in a different form, since those other proceedings had by then been finally determined. Mr Kingston submitted that (a) it is arguable that the claimants would be able to rely on the statutory defence under regulation 40(3)(c) if they were to recommence quarrying at Pen yr Henblas and in so doing were to destroy the great crested newts or their habitat; and (b) it will be difficult in the circumstances for CCW to refuse a licence under regulation 44(2)(c) to translocate the great crested newts. One way or another, it is said, the recommencement of quarrying is "inevitable" and the colony of great crested newts is "bound to be lost at or translocated from Pen yr Henblas".
91. By reference to the wording of the Natura 2000 standard data form Mr Kingston submitted that in assessing whether a site possesses the qualities necessary to justify selection as a candidate SAC one should have regard to the pressures of activity on the site. In particular, section 6 of the form is concerned with "impacts and activities in and around the site"; and the explanatory text indicates that this relates to "all human activities and natural process that may have an influence, either positive or negative, on the conservation and management of the site", including mining and the extraction of minerals. The information to be provided is in very short form: a code for each relevant impact/activity and for the intensity of its influence; the percentage of the surface area of the site affected; and whether the influence is positive, neutral or negative. Any relevant impacts and activities not included in that list are to be indicated in a free-text field under section 4.3, "vulnerability", which deals with "the nature and extent of pressures upon the site from human and other influences and the fragility of habitats and ecosystems found there".
92. It follows from all this, submitted Mr Kingston, that the existence of the planning permission and the intended recommencement of mineral activity, and the effects of such activity, were relevant considerations to which the defendant should have had regard. They had clear implications for the assessment of the site as a candidate SAC. The correspondence shows, however, that they were not taken into account.
93. It was further submitted that the existence of the planning permission and the "inevitable" recommencement of quarrying were at least relevant to the conservation status of the site (in respect of which a B grade was given in the completed standard data form) and the global assessment of the value of the site for the conservation of the species concerned (in respect of which a B grade was also given). The inevitable quarrying activities and their impact on the great crested newts were material to these assessments and should have been taken into account.
94. A similar point was taken in relation to part of the Aberdo Quarry, immediately to the north west of Pen yr Henblas, which was also included within the candidate SAC because of its population of great crested newts. A translocation licence has in fact been granted by the Welsh Assembly Government under regulation 44(2)(e) in respect of the taking of newts while upgrading an access route at that quarry. Translocation licences have also been granted in respect of the adjacent Bryn Mawr area which was not included within the candidate SAC.
95. Mr Jarman, for the defendant, submitted that the above line of argument was mistaken. The possibility of recommencement of quarrying and its effect on the newts cannot be a good reason for excluding the site from the list of candidate SACs. The Stage 1 assessment criteria, as set out in Annex III, relate only to the conservation of natural habitats and of wild fauna and flora: see the decision of the European Court of Justice in R v. Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd. [2001] 4 PLR 1. The assessment of the conservation status of a site and of the other Annex III criteria is a matter for expert scientific judgment. Provided that a list is drawn up in accordance with those criteria, there is no basis for alleging that relevant factors have been ignored.
96. Mr Jarman added that it is difficult to see why a threat to conservation should be regarded as a factor militating against inclusion of the site as a candidate SAC, unless the nature of the threat is outside the scope of the Directive, which is not the case here. It would defeat the purpose of the Directive if a site that otherwise met the criteria were to be excluded from the list because of the threat posed by implementation of an existing planning permission. The true position is that the inclusion of a site on a list of candidate SACs begins a process capable of protecting the site. When the list is approved and the site becomes an actual SAC, as has happened in this case, the existing planning permission becomes immediately subject to review in the light of the relevant conservation objectives (see regulations 10 and 48-57 of the Habitats Regulations). The claimants' argument is in direct conflict with this point.
97. The factual position is that, although some reference was made in the correspondence to the existence of the planning permission in respect of Pen yr Henblas and to the fact that the quarry had not been worked for many years, there is nothing to show that the matters now raised under this heading were taken into account, whether in the precise form in which they have emerged following the determination of the other judicial review proceedings or in any similar form. On the contrary, CCW's letter of 4 November 2002 contains a clear statement (at Annex I, paragraph 1.3(b)) that the planning status of sites was not considered when selecting areas for designation as SACs. The critical question is whether that was a legally correct approach.
98. As to that, I accept Mr Jarman's submissions that the approach was legally correct. It seems to me that the claimants' case runs counter to the very purpose and scheme of the Directive as indicated by the European Court of Justice in First Corporate Shipping.
99. The issue in First Corporate Shipping arose out of the Secretary of State's proposal to include within the list of candidate SACs an area of the Severn Estuary which was of substantial economic importance for the port of Bristol. First Corporate Shipping, as the statutory port authority, submitted that the Secretary of State was obliged to take account of economic, social and cultural requirements when deciding which sites to propose. The European Court of Justice emphatically rejected that argument:

"15. Those [Annex III] assessment criteria are defined exclusively in relation to the objective of conserving the natural habitats or the wild fauna and flora listed in Annexes I and II respectively.

16. It follows that Article 4(1) of the Habitats Directive does not provide for requirements other than those relating to the conservation of natural habitats and of wild fauna and flora to be taken into account when defining the boundaries of sites to be proposed to the Commission as eligible for identification as sites of Community importance."

100. The court went on to explain in detail why it would jeopardise the achievement of the objective of the Directive if Member States could take account of economic, social and cultural requirements and regional and local characteristics when selecting and defining the boundaries of the sites to be included in the list that, pursuant to article 4(1), they must draw up and submit to the Commission.
101. Mr Kingston sought to distinguish First Corporate Shipping on the basis that the present case is not concerned with "economic requirements" or like matters, but with an existing planning permission that entitles the claimants to carry out quarrying work at the site in the circumstances described and that therefore has practical implications for the vulnerability and conservation value of the site.
102. It is true that the court in First Corporate Shipping was looking more broadly at economic requirements and the like rather than at the existence and potential impact of a particular planning permission. In my judgment, however, the reasoning of the court in that case is equally applicable to the claimants' arguments in the present case. It emphasises that the relevant assessment criteria are defined exclusively in relation to the conservation objective. If one focuses on the Annex III criteria, as the court makes clear must be done, I see no room for excluding an otherwise appropriate site on the basis that the relevant habitats or species are liable to be affected by the implementation of existing consents. One of the purposes of the Directive is to confer protection upon sites that meet the Annex III criteria. Such protection includes a review of existing consents, to determine whether and on what conditions they can be implemented. It would turn the scheme of the Directive on its head if the existence of a consent could be relied on as a reason for not protecting a site in the first place.
103. I therefore consider that, if a site otherwise meets the criteria for inclusion as a candidate SAC, it cannot be lawful for a Member State to exclude it from the list of candidates on the ground that the habitats or species it contains will or may be affected by implementation of an existing planning permission or licence.
104. It follows that the possibility or probability (not a certainty, despite the strong language used in Mr Kingston's submissions) that, but for SAC status, the existing planning permission would be implemented and that the colony of great crested newts would be lost or relocated was not a legally relevant consideration in determining whether to include Pen yr Henblas or Aberdo within the area of the candidate SAC. The potential impact that implementation of existing consents might have on protected habitats or species may form part of the information to be provided to the Commission, but is not a good reason for deciding not to include a site as a candidate SAC. The defendant's decision cannot therefore be successfully impugned by reference to a failure to take such matters into account.
105. I should mention for completeness that in his reply Mr Kingston took an additional point to the effect that CCW had revealed a misdirection when it stated in a letter of 16 May 2003 (in the context of SSSIs, and after the decision under challenge had been taken) that the planning permission at Pen yr Henblas could not lawfully be implemented without a licence in respect of the great crested newts. Even if that was an error, on the basis that the claimants would arguably have a statutory defence in respect of harm done to the newts due through implementation of the existing planning permission, it is of no materiality since, as I have held, the planning permisison was correctly left out of consideration when assessing the site's suitability as a candidate SAC.

Reliance on the great crested newt population

106. Even apart from the issues arising out of the existing planning permission for Pen y Henblas Quarry, the claimants contend that it was Wednesbury unreasonable to rely on the presence of the great crested newts as a reason for including Pen yr Henblas or the rest of Halkyn Mountain in the list of candidate SACs. CCW laboured for some time under the misapprehension that the site comprised the seventh largest population of great crested newts in the United Kingdom. By the time of the decision that misapprehension had been corrected: the data form submitted to the Commission stated correctly that the population of great crested newts was 325. The claimants nevertheless contend, with the support of Dr Betts's witness statement and its exhibits, that the population is not particularly large and that great crested newts are not under any particular threat and are already well protected across their considerable range in Britain; nor is there any linkage in ecological terms between the calaminarian grassland and the presence of great crested newts at the site. On this basis it is submitted that the presence of the great crested newt could not provide a rational basis for the inclusion of Halkyn Mountain as a candidate SAC. The underlying theme of the submission, to which I have already referred, is that the decision to include Halkyn Mountain was quota-driven rather than having a proper scientific justification.
107. It is true that great crested newts are found on many sites in the United Kingdom and that their overall population, although uncertain, appears to be relatively large. A JNCC report, entitled Handbook on the UK status of EC Habitats Directive interest features, includes (at page 132) a map of their UK distribution, which can be seen to be particularly widespread in England, and gives the estimated total population as 360,000. It also refers to an estimate that there are approximately 18,000 ponds supporting such newts in the United Kingdom; and it states that recent surveys suggest that that may be an underestimate. One of the Betts reports commissioned by the claimants states that the evidence so far gathered suggests "a critical lack of knowledge" about the United Kingdom population of the species and that the species may have been listed over-cautiously.
108. All of this serves to underline that the population of great crested newts at Halkyn Mountain is not as important as CCW initially thought it to be. But it gets nowhere near to showing that the population of great crested newts could not rationally be relied on as one of the reasons for including Halkyn Mountain in the list of candidate SACs; and in my judgment the claimants' case as to irrationality is unsustainable.
109. The application of the Annex III criteria requires the making of a broad scientific judgment, with a view to ensuring adequate coverage not just in terms of a proportion of the total population of a species but also in terms of its geographical range and other matters. Great crested newts are a protected species. Halkyn Mountain is one of a relatively small number of sites in Wales where they are found. The population of newts at that site is substantial. According to the completed data form, the site "is considered to be one of the best areas in the United Kingdom" for the species. Making all due allowance for the information placed before the court by the claimants, including Dr Betts's personal disagreement with the assessments made, I consider that it was reasonable for the Welsh Assembly Government, acting on the advice of CCW, to rely on the presence of the species as a reason for including the site within the list of candidate SACs. Whatever the pressures arising from the stance taken by the Commission at the Kilkee meeting, the decision had a proper scientific basis to it and was not "quota-driven" as the claimants contend.

Reliance on the calaminarian grassland

110. The claimants contend that it was unreasonable to include Halkyn Mountain in the list of candidate SACs at all, or unreasonable to do so in respect of such a large area, by reason of the presence of calaminarian grassland. As I have already indicated, they rely on the fact that earlier studies had not sought to elevate Halkyn Mountain to anything beyond a site of local importance, that with the exception of one small area the site had not previously been designated as an SSSI, and that the Prosser/Wallace report did not recommend that it should be an SSSI or SAC; and they submit that the later scientific evidence did not support its inclusion.
111. As to the later evidence, I have already quoted the concluding remarks of the Stevens report issued in December 2002, in which it is stated that the survey findings confirmed that Halkyn Mountain "includes the best and largest examples of metallophyte vegetation in north-east Wales" and that "no other sites with comparable areas of OV37 vegetation are known to occur in Wales". For present purposes, albeit with a lack of scientific precision, metallophyte vegetation and vegetation within the OV37 category can be equated with calaminarian grassland. The Stevens report contains a detailed account of the survey findings with regard to the presence of such vegetation, stating inter alia that "[t]he community is widespread on the common and surrounds, amounting to 12.0 ha and occurring both as small stands scattered among grassland and other vegetation, and in larger concentrations" and examining the presence of sub-communities and forms (paragraph 3.1.2). Later in the report, in Table 1, it is described as "[b]y far the largest area of OV37 in the the Clwyd AoS [area of search], represented by a range of sub-communities and other forms. Good transitions to other semi-natural habitats."
112. Dr Betts, in his witness statement, makes a number of comments concerning the Stevens report and its limitations. He makes various criticisms of the survey methodology and results. He makes a point, considered below, to the effect that a semi-natural site of calaminarian grassland such as that at Halkyn Mountain is to be taken into account only where natural sites are very rare or absent, which is not the case in the United Kingdom. He also states that survey squares identified in the Stevens report as containing calaminarian grassland may in fact have contained very small patches of such grassland, so that the report may give a misleading impression of its extent.
113. Dr Betts's witness statement must be treated with considerable caution, since it was not available to CCW when giving its advice to the defendant or to the defendant when making its decision (I have dealt already with the separate complaint made about that in the context of the consultation issue). The rationality of the decision to include Halkyn Mountain in the list of candidate SACs must be assessed by reference to the material available to the decision-maker and not by reference to additional material subsequently placed before the court. That is not to say that Dr Betts's witness statement is wholly inadmissible or without value. It may be useful, for example, as a means of drawing attention to material that was before the decision-maker, or may be adopted by way of submission, or may be deployed to show what further information would, on the claimants' case, have been available if there had been a longer period of consultation. But it is plainly not the function of the court to resolve matters of scientific dispute between Dr Betts and those responsible for the Stevens report, nor to second-guess how they might have been resolved by CCW or the defendant had the full material been available to them.
114. Looking at the material that was available to CCW and the defendant, and in particular at the Stevens report, I take the view that it provided a rational basis for the decision to rely on the presence of calaminarian grassland as a reason for including the whole of Halkyn Mountain in the list of candidate SACs. The survey on which the report was based was undertaken to provide "an authoritative and detailed vegetation map and description of the site" and it could reasonably be regarded as having achieved that objective. It was consistent with, though more detailed and helpful than, the Prosser/Wallace report on which the original decision to include Halkyn Mountain as a candidate SAC was based. It was also much fuller and more focused than earlier studies. There is nothing on the face of the report that would have caused a reasonable decision-maker to doubt its scientific reliability or to consider that further work was necessary before any decision could properly be taken.
115. Moreover, to the extent that the point is a legitimate one to consider, nothing in Dr Betts's witness statement causes me to doubt the reasonableness of relying on the Stevens report or the reasonableness of the decision reached in reliance on that report.
116. I need to deal separately with a point which is presented as one of interpretation rather than rationality. The Commission's Interpretation Manual of European Union Habitats gives the following classification (no. 6130) of "Calaminarian grasslands of the Violetalia calaminariae":

"(1) Generally open natural or semi-natural grasslands 1) on natural rock outcrops, rich in heavy metals (e.g. zinc, lead), 2) river gravels and shingles, 3) on old terrils or spoil heaps around mines …

(4) Semi-natural sites are to be taken into account mainly if natural sites are very rare or absent from a region or, if these sites shelter characteristic or outstanding plant species."

117. Mr Kingston, picking up a passage in Dr Betts's witness statement, submits that the criteria in the Interpretation Manual have not been correctly construed or applied. Halkyn Mountain is a semi-natural site, an artificial habitat on old quarry workings or spoil heaps. There are numerous such sites in the United Kingdom, and Halkyn Mountain has not been shown to be a species-rich site. It follows that it does not meet the criteria for exceptional inclusion of the site on the basis of calaminarian grassland.
118. I am wholly unpersuaded by that submission. The classification provides wide scope for the exercise of judgment in relation to the selection of semi-natural sites. A judgment has to be made as to whether natural sites are "very rare" and, if not, whether a semi-natural site should be included in any event (note the use of the word "mainly" rather than "only") and in particular on the basis that it shelters "characteristic or outstanding plant species". Halkyn Mountain is one of a relatively small number of sites in the whole of the United Kingdom, and one of only four in Wales, where calaminarian grassland is a primary reason for inclusion. The Stevens report said that it was the best and largest example of metallophyte vegetation in north-east Wales and that no other sites with comparable areas of OV37 vegetation were known to occur in Wales. In my view the judgment that the site merited inclusion was consistent with the classification criteria in the Interpretation Manual as well as being a judgment reasonably open on the material available.

Inclusion of Holywell Golf Course

119. This issue relates to the extent of the land at the Holywell Golf Course included within the SAC. The claimants contend that the inclusion of the golf course can be based only on the presence of calaminarian grassland, since there are no populations of the great crested newt in this area. They accept that some stands of calaminarian grassland do occur in the area (such stands lying, it would seem, in the roughs of the golf course rather than on the tees, fairways or greens), but they say that such stands occur in only a small part of the area and are fragmentary. In particular, one only tiny stand is located south of a highway that runs across the golf course, yet more than half of the total area of the golf course included within the SAC is to the south of that highway. It is submitted that the approach to the drawing of the boundaries of the SAC in the area of the golf course is so broadbrush as to be Wednesbury unreasonable. A contrast is drawn with the approach to an outlying area known as Hereward's Cottage, to the north of the main A55 road, where the boundary was drawn tightly around the Calaminarian grassland discovered there.
120. The defendant's response is that it is a matter of judgment where to place the boundaries of the SAC on land that contains patches of protected vegetation. In this case the reason for including the entire golf course, rather than seeking to demarcate parts of what amounts to a single open space, was to do with the management regime for the golf course, in particular to ensure that management practices remained substantially as at present and that any changes in management practices or further developments were the subject of consultation to ensure the conservation of the protected vegetation situated within the course.
121. In my judgment the defendant's approach was not unreasonable. This was an open space subject to a single management regime and it made sense to include the whole of it within the candidate SAC, apparently using various existing boundary features, rather than to seek to draw boundaries more tightly around the particular areas of rough where the various stands of Calaminarian grassland were located. The position was very different from that at Hereward's Cottage, a discrete location away from the main area of the SAC, though there too it appears that the boundaries were drawn by reference to existing features.

Conclusion

122. Since I have heard full argument and have held against the defendant on the question whether the proceedings serve a useful purpose and on the issue of delay, I think it right to grant permission. For the reasons I have given, however, the claimants' challenge to the decision to include Halkyn Mountain as a candidate SAC fails both on the consultation issue and on the various substantive issues. The claim for judicial review must therefore be dismissed.