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
		26 January 2007

Mr Justice COLLINS :

1. Llanishen and Lisvane Reservoirs are on the outskirts of Cardiff. They are no longer needed as reservoirs and so the claimants, as owners, wanted to obtain planning permission for housing development. An environmental assessment was required. On 5 November 2003 one was provided which recorded that, despite the data having been obtained during November and December 2002, a poor year for fungi, a wide range of grassland fungi species had been found. The relevant paragraph continued:-

"Of those, Waxcaps are of particular note due to their local abundance on the drier grassy slopes, which are mown approximately twice per year."

There were then reference to two particular species, and it was observed that it was possible that more species would be found if observations were made over a longer period. The statement continued (Paragraph 947):-

"A survey carried out by Cardiff County Council and Plantlife volunteers during 2002 … confirmed that Llanishen reservoir is the most diverse Waxcap site known within Cardiff County. For the purposes of the assessment the bank-tops and grassland slopes have been provisionally assessed as being of 'Regional' importance for their fungi."

2. The defendant (CCW) is the body which in Wales has the responsibility for deciding whether areas of land should be notified as Sites of Special Scientific Interest (SSSI). A site will qualify for this designation if it 'is of special interest by reason of any of its flora, fauna, or geographical or physiographical features' and if CCW is of the opinion that that is the case, it has the duty to notify that fact to the local planning authority, any owner or occupier of the land and the Secretary of State – Wildlife and Countryside Act 1981 s.28. The environmental statement alerted the CCW to the possibility that the banks of the reservoir, particularly Llanishen, should be notified in accordance with s.28. A supplement to the environmental statement which recorded an additional survey carried out in the autumn of 2003 confirmed the provisional assessment that the presence of the grassland fungi meant that the site was at the upper end of 'Regional' importance.
3. In February 2005 there was a further supplement which reported the results of surveys carried out between September and November 2004. This showed more species and that the western banks were more productive than the eastern. It confirmed that the site qualified as nationally important following the survey system used by CCW's draft guidance. Measures were proposed to enable the development to proceed and the fungi to be protected.
4. Waxcap is the common name for species of the genus Hygrocybes. There are 35 species that have been certainly found on mesotropic grassland in Wales.. Certainly over 25 and probably 28 of these have been identified on the banks of the reservoirs. They exist in unimproved grasslands in the United Kingdom and northern and central Europe. They take time to develop, needing a minimum of 20 to 30 years coupled with mowing or grazing and an absence of fertilisers or reseeding. The reservoir banks were constructed between the 1860s and the 1880s and have been mown regularly. As a result, they are an ideal habitat. Even in parts of Europe where traditional pastures have survived in greater numbers than in the United Kingdom, waxcaps are in decline. The best sites in Europe appear to be in Scandinavia and Denmark, but even those countries have only one site each with 28 or more waxcaps.
5. Waxcaps can only be identified when they fruit. There is no way of identifying species unless they can be seen in that form. They fruit in the autumn. But individual species may not fruit every year. Much will depend on rainfall and temperature and they are vulnerable to frost. Thus a number of surveys in any particular season and in different years are required before it is possible to be satisfied that an accurate count has been made of all species present in a particular area. However, some species are reckoned to be indications of a likelihood of greater diversity and systems have been devised by mycologists to forecast from limited surveys the diversity that can be expected.
6. It is the decision of CCW to notify the site as an SSSI followed by the confirmation of that notification which is challenged in this claim. In notifying an SSSI, CCW must specify the fauna, flora, or geographical or physiological features by reason of which the land is of special interest and any operations appearing to it to be likely to damage that flora or fauna or those features (1981 Act s.28(4)). Owners or occupiers of an SSSI may not carry out such operations without CCW's consent. A breach is a criminal offence: ss 28E(1) and 28P. There are other powers by which CCW can ensure proper management to protect the site. Thus the existence of the SSSI imposes severe constraints on the ability of the claimants to obtain planning permission to enable them to develop the land as they wish.
7. Before going further, it is important to set out the statutory scheme which establishes the procedure whereby a site can be designated as an SSSI. The claimants attack the rationality of the decision of the CCW to notify the site and assert that there was a failure to ensure that all proper information was taken into account before reaching a decision. A suggestion in the amended grounds of unlawful predisposition or bias was not pursued, but the matters which were relied on to show such predisposition were, it was submitted, material in considering whether the decision was irrational.
8. Section 28 of the 1981 Act, as substituted by Schedule 9 to the Countryside and Rights of Way Act 2000, imposes upon the CCW (who are defined to be the Nature Conservancy Council for Wales: 1981 Act s.27A) the duty to notify if of the opinion that the criteria for notification exist. These I have already identified. S.28(3) provides:-

"A notification … shall specify the time (not being less than 3 months from the date of the giving of the notification) within which, and the manner in which representations or objections with respect to it may be made, and the Council shall consider any representation or objection duly made."

S.28(5) enables the Council to withdraw or to confirm the notification within 9 months of service of the notification on the Secretary of State and, if it is withdrawn or there is a failure to confirm it within the 9 month period, it ceases to have effect: s.28(6). S.28D provides for what is described as denotification. This adopts the s.28 procedures if the Council decides that land forming all or part of a SSSI is no longer of special interest and so should no longer be notified as such.

9. Before the amendments introduced by the 1985 Amendment Act, the notification occurred when the confirmation now does. Since it was considered necessary to enable there to be interim protection, the notification came first but was not finally established until confirmed. At least 3 months was to be given to enable representations and objections to be made and a further period amounting to a total of 9 months could elapse which within all such representations and objections were considered.
10. CCW came into existence in 1991 pursuant to the Environmental Protection Act 1990. It must have between 8 and 12 members who are selected for their particular knowledge, experience and expertise in relation to countryside matters and nature conservation. It has a staff of some 620, the vast majority of whom have at least a first degree in a relevant scientific discipline in their field. In addition, it will receive advice on particular matters from independent experts if that is thought necessary. Generally speaking, officers will identify a site which they regard as a potential SSSI and must persuade the directors to whom the decision whether to notify is delegated by the Council, that they can in principle proceed. If approval is given, the necessary documentation is then prepared and the directors will decide whether notification should take place. The statutory consideration of representations and objections will then follow if notification takes place and the matter will be put to the Council, which meets once a month (save August) who will hold an open meeting and decide whether or not to confirm the notification and, if it is to be confirmed, whether any modifications should be made. The Council will often hear oral submissions, as they did in this case.
11. The Council members are chosen because they have the expertise so that they are qualified to make the decisions which are of a technical and specialist nature. Ecological knowledge and the exercise of judgment based on such knowledge are needed. Thus, as Forbes J observed of CCW's counterpart in England, English Nature, whose composition is based on the same principles as apply to CCW:-

"The discharge of its statutory duty under s.28 of the 1981 Act requires English Nature to exercise its expert judgment on technical and scientific matters as well as on policy issues: so far as concerns the factual and technical aspects of that process, English Nature is far better placed and qualified than a court to make the requisite assessments and value judgments: essentially English Nature is required to carry out a scientific assessment of the site in question." (see R(Aggregate Industries U.K.Ltd v English Nature [2003] Env. L.R. 83 at 125).

Reference was made to the Joint Nature Conservation Committee's publication "Guidelines for selection of biological SSSIs" which in paragraph 3.1 to 3.3 states:-

"3.1 The [Council] is required only to exercise its 'opinion' in the selection sites for notification, and the use of this word is a wise recognition that special (scientific) interest is a matter of informed best judgments rather than the rigid application of objective rules;

3.2 The determination of special interest requires first the descriptive recording of the biological attributes and controlling physical environmental features of an area and then the application to these of agreed criteria of nature conservation value of an area … The evaluation part involves integrating and balancing the views not only of widely differing interests in the phenomena of nature, but also many different individuals within each interest.

3.3 The complexity in evaluation lies not only in differences in values and needs between separate interest, but also in the diversity of viewpoints within any one interests. And in nature itself there is such enormous variety to be considered – a vast array of habitats, communities and species which may need assessing in different ways by virtue of the widely varying environmental patterns which control their existence. Nor do nature conservation values necessarily remain static … The second part of the determination process must therefore inevitably remain a matter of best judgments …"

12. Mr Steel, Q.C., has rightly recognised that he will not be able to persuade me to enter upon the scientific issues and reach any decision of my own. Equally, if the CCW preferred to rely on the views of scientists which were not in agreement with those of the scientist engaged by the claimants, that is not a matter which can be relied on to show unlawfulness. I suppose it might be possible in an exceptional case to argue that the views were so obviously ridiculous that no reasonable person could have relied on them. But the chances of that being even arguable are extremely remote and do not apply in this case. Mr Steel supports his irrationality argument, as will be seen, in a different way by submitting, broadly speaking, that the decisions to notify and to confirm the notification were flawed because there was a failure to have regard to the lack of sufficient identification of other sites, which were indeed likely to be better than Llanishen, and a failure properly to follow the Joint Nature Conservation Committee's (JNCC) guidelines. In addition, he submitted that the approach, which was driven by a concern to prevent or to hinder the development of the site, was erroneous.
13. Before coming to the facts, I should refer to the relevant parts of the JNCC Guidelines. The approach required is to describe first the biological attributes and controlling physical environmental features of an area and then the application to those of agreed criteria of nature conservation value. While the descriptive part of the process can be made reasonably objective or standardised, evaluation involves integrating and balancing the views not only of widely differing interests in the phenomena of nature but also of many different individuals within each interest. It is worth, I think, citing Paragraph 3.3 of Part A which identifies the complexities of the exercise. It reads:-

"The complexity in evaluation lies not only in differences in values and needs between separate interests, but also in the diversity of viewpoints within any one interest. And in nature itself there is such enormous variety to be considered – a vast array of habitats, communities and species which may need assessing in different ways by virtue of the widely varying environmental patterns which control their existence. Nor do nature conservation values necessarily remain static: as certain features become ever rarer through human impacts, so the value of the remaining examples increases. And, as more people become interested in a particular aspect of nature, so their view increasingly weights the collective interest. The values that people place upon nature are fundamentally subjective and we can only try to synthesise them into a corporate view. The second part of the determination process must therefore inevitably remain a matter of best judgments. It is, nevertheless, important to rationalise and systematise the evaluation and selection of SSSIs and to impose as much rigour and consistency as possible on the whole process. Because nature conservation values are dynamic and still evolving, periodic review of this process is necessary, to ensure that it continues to meet the needs of society."

14. In Paragraph 4.6 of Part A, a most important consideration is identified. In principle the best examples of sites which seem to meet the necessary outcome should be notified, but it is recognised that circumstances may dictate that, if the criteria are in fact met in a number of sites within an area, all should be notified. Much will depend on the size of any residual resource. The point is made that, in Cambridgeshire, for example, there is little land which remains in a semi-natural state and much of that is within SSSIs. This is then said:-

"While it is important to apply minimum standards of quality to the selection of all SSSIs, the principle of choosing nothing but the best examples is now appropriate only to the abundant, extensive and continuous types of ecosystem, notably rivers, northern lakes, cliff coasts and uplands. For many habitats, several of the best examples per region are desirable …. In the most highly developed lowland districts there is, indeed, a strong case for regarding almost any area of semi-natural habitat above a certain size as qualifying for SSSI status."

15. 'Scoring' systems have been developed and can be used to help to determine whether, often in relation to the presence of particular species of fauna or flora, a site qualifies. But, as the guidelines emphasise, they must be used with care, since, although described as objective, they are invariably loaded with hidden value judgments and subjective assumptions. One major problem lies in the unevenness in survey knowledge of natural and semi natural habitats in Britain. However, such systems can be used with care and it must be obvious that, while perhaps they should not generally be relied on as the sole basis for notification, they can help to confirm what other data suggests.
16. The paragraph of the Guidelines upon which Mr Steel particularly relies is 1.2 of Part B, which deals generally with operational approach and criteria. This provides:-

"The main need is to ensure that the series of Sites of Special Scientific Interest throughout Great Britain is sufficient in kind, number and extent to conserve the total national 'special interest' of this range of variation in habitats, with their associated flora and fauna. While the classification of this countrywide field of variation into habitats and species-groups is the basic reference system for the selection process, it is necessary for practical purpose to relate this to some geographical subdivision of Britain. The Areas of Search (AOSs) defined in Figure 2 (on page 18) and discussed in A, 4.11 provide such a framework, and on an appropriate scale. They correspond quite well to the geographical scale on which nature has traditionally been studied, recorded and conserved, as the focus of such activities has been on counties and Watsonian vice-counties (Dandy 1969). County flora and faunas have been a major source of information on important sites, and the most recent mapping schemes and habitat surveys have also tended to be county-based. This has, accordingly, become a widely accepted scale for the setting of nature conservation objectives and strategies. Within each AOS, a minimum aim will be to represent all the different habitats and species that are present by at least one – and preferably the best – example or population. This involves selecting enough relevant sites which satisfy certain minimum standards of quality. Provided that selection is adequate within each AOS, representation of national gradients in features determined by climate and other environmental factors will automatically be accommodated in the countrywide network of SSSIs. For many habitats and species, the minimum of one example or population per AOS will not be enough, and the guiding principle is that, as rarity or other special value increases, so does the need to notify a larger proportion of the total remaining area or population. Where rare or otherwise especially important habitats or species are wholly or nearly confined to one AOS, there may be no limit on the number or area of sites qualifying for selection."

He emphasises the reference to the need, as a minimum aim, to represent all the different habitats and species by "at least one – and preferably the best – examples or population". This, he submits, means that CCW must gather information of sites of sufficient quality before evaluation and certainly before notification. The notification by CCW was flawed because it failed to do this and failed when it had the means available to undertake the exercise, since the claimants had offered to provide the necessary personnel and funding, and when it not only knew that there were sites which were likely to be as good as or better than Llanishen but had identified one such. However, particularly in the light of what is said in paragraph 4.6 of the Guidelines, this in my judgment places far too great a weight on the suggestion that preferably the best sites should be identified. The guidance does not mean that only one site should be chosen. It indicates that at least one and preferably the best should be identified. But, as is made clear in the general approach, it may be desirable to notify more than one if there are more than one which meet the criteria. This comes back to the statutory duty imposed on CCW by s.28(1) of the 1981 Act to notify a site to be an SSSI if it is of the opinion that it is 'of special interest by reason of any of the flora, fauna, or geographical or physiographical features."

17. The guidelines were published in 1989. In 1992, a supplement was issued which dealt specifically with non-vascular plants, namely bryophytes, fungi, lichens and non-marine algae. They provided special problems for various reasons. Those include inadequate data on distribution, so that rarity is difficult to determine, problems of identification of individual species and inadequacy of literature. Fungi, it is said (Paragraph 1.3.6):-

"…. are uniquely difficult to record effectively, since they are recognised by their fruiting bodies, which are only available at certain times of the year and whose appearance is often very erratic. To know the fungus flora of any site reasonably well therefore involves visits at different times of the year over many years."

It is noted that the British non-vascular flora are one of the richest in Europe, largely because of the geographical position of the British Isles which has provided particularly in Western areas the warmer and wetter conditions which such flora require. However, in relation to fungi:-

"Distributional data … are, on the whole, too scanty to allow lists of rare and scarce species to be assembled. For the present, their representation in SSSIs will have to depend either on their chance occurrence in sites selected on other grounds or on information from specialists who know some of the good localities for their particular groups." (Paragraph 3.4).

18. England and Wales are divided into a number of Areas of Search (AOS). These are of greatest importance in the selection of the best areas, but are not so relevant for selection based on minimum standards. If those standards are reached, a site should be notified even if there are others within an AOS. If within an AOS the sites of a particular habitat are limited, the best should be identified and notified even if they might be less good than others in different AOSs. The relevant AOS in this case is Mid and South Glamorgan.
19. While the environmental statement and its supplement following the surveys in 2002 and 2003 alerted the CCW to the possibility that Llanishen might qualify as an SSSI, it was not until the further addendum following the 2004 survey that its importance was recognised. There was a recognition that there had been only a few other sites which had been surveyed, certainly in the detail accorded to Llanishen, but the preliminary view of the expert, having regard to the number of species of Hygrocybe identified, was that it was "clearly a great waxcap site". It was of course known that a planning application had been made for housing development (that had led to the environmental statement and the measures proposed to try to safeguard the waxcaps) and CCW had been asked by the planning authority for its views. But it had been informed by the authority that "subject to conditions and on the understanding that the grassland fungi interest is of local importance only, it is not reasonable to refuse the application in its current form."
20. Mr Woods, an expert mycologist, was the advisor used by CCW. He was aware of the extensive studies of Danish sites and of other European literature which had resulted in a system named after its author, Vesterholt, whereby the presence of more than 22 waxcaps on a site following multiple visits justified a certification of the site as one of international importance. Others had endeavoured to identify ways of assessing whether rare species were likely to be found on particular sites. One such involves the weighting of species which are rare or which indicate the best waxcap grassland. Drawing on all this, a system was adopted by McHugh and others allocating numbers between 1 and 4 to different species largely of Hygrocybes. A further check depends on a count of the species of 4 genera of fungi, the first letter of which produce the acronym CHEG. Mr Woods has applied a slightly modified McHugh system together with CHEG to reach a decision. The addendum to the Environmental statement showed a McHugh score which appeared to be 57 (in itself high enough to denote a site of great importance: 60 would be one of international importance) and the presence of 28 Hygrocybe species. This, with the small size of the site, led Mr Woods to believe that it was likely to qualify as a SSSI. A body known as the Reservoir Action Group (RAG), which was opposed to the proposed development, had carried out its own surveys, the results of which were made known to CCW and were broadly similar to those in the environmental statement. This confirmed Mr Wood's reaction. The result of all this was to raise the modified McHugh score to 60.
21. Mr Woods' methodology has been challenged by the claimants. They employed a Dr Gibson of Bioscan, an environmental consultancy established in 1984. He contended that there was insufficient data to enable CCW to reach its conclusions. It was his view that it was because Llanishen had been studied intensively and not because it was a genuinely unusual site that a long species list of grassland fungi had been identified. There had been comparisons with only a few other sites and so it was not appropriate to rank it sixth (as had been done by CCW) in importance in Wales. In reality, it was not of special interest. Using the method he espoused, it was no better than 37^th out of 70 sites with comparable data in Wales.
22. There has been an overabundance of paper in this case. Lengthy and detailed statements with supporting material have been supplied on each side to seek to explain and to justify the contrary approaches to assessment of the value of the site. I do not propose to go into that in any detail since I am in no doubt that CCW was entitled to prefer the methodology and opinion of Mr Woods. This is all the more so since, having received Dr Gibson's report, it decided to seek the opinion of a second expert, Dr Griffiths, who confirmed the validity of Mr Woods' approach. The directors and ultimately the Council members had the expertise to enable them to exercise judgment. Since I can only interfere if an error of law is shown, it is not appropriate to consider them and to form my own views.
23. That is not the end of this claim since I must consider Mr Steel's contentions that there has been a failure to have regard to material matters and procedural irregularities in misapplying the guidelines and in adopting a policy which was wrong in law.
24. On 20 April 2005 an application for an in principle approval was made to the directors, based on the material to which I have already referred. This was accepted and as a result on 21 April 2005 the CCW wrote to the planning authority objecting to the development on the ground that the site was to be designated an SSSI and there would be an unacceptable impact on the grassland fungi. A copy of this letter went to the claimants. Complaint is made that there was no prior indication of the prospect of notification. There is nothing in that since the scheme of the legislation anticipates that the time for consideration of objections is after notification. In any event, once the letter was received, there was a meeting with representatives of the claimants in the hope on their side of some possible compromise, although they made it clear that they intended to challenge any decision to notify. On 12 May 2005, the claimants' solicitors wrote a letter asking for information about what was known to CCW from any surveys carried out by it or available to it. They said that the claimants intended to commission further work to establish the level of importance of the site and asked CCW to co-operate in this exercise. They also stated that the claimants were prepared to give an undertaking that no operations would be carried out on any relevant part of the land on which permission for development was sought without giving at least 28 days notice of their intention to do so. They also expressed concern about what they described as inadmissible political pressure being applied to prevent the development. On 27 May CCW replied stating that, despite the limited level of data available for grassland fungi as opposed to vascular plants, it was satisfied that there was sufficient to assess whether the site was properly to be notified. It made the point that the claimants' environmental statement described the site as one which was nationally important. It welcomed the decision to obtain further information. It assured the claimants that it had not been influenced by any pressure from any third party.
25. In December 2003, CCW had adopted a strategy identified as CCW P 03 50(C) for the notification of SSSIs during the period 2004 to 2007. The purpose of this was to ensure that the current SSSIs were properly managed and so only to notify new sites 'if they underpin a SAC, SPA or Ramsar site or are under threat, as detailed in the policy, or if notification is necessary for long term management of the site'. Financial considerations played a part in this since it was believed that there was little point in notifying if the sites could not be managed properly and so the purpose of notification would be undermined.
26. It was apparent that the concern that development would damage the grassland fungi led to the decision to notify being pursued when it was. The claimants have asserted that, since SSSIs must not be notified in order to frustrate the otherwise proper use or development of the land by its owners, this policy was flawed. That it was flawed is common ground, but not because of that. Mr Howell, Q.C. says it was flawed because it prevented the notification of sites which fulfil the s.28(1) criteria and so was contrary to the duty laid down in that subsection. Resources can play no part in the decision whether a site should be notified although, obviously, they will be material in assessing how a site when notified should be managed. It is apparent that the identification of possible sites is a continuing process. This is particularly the case in relation to such as fungi and other non-vascular flora where there is less information available. It is entirely reasonable to consider notification because a site is under threat provided that the decision is properly based on the value of the sites and not driven by the threat to it. Indeed, CCW would in my view be failing in its duty if it did not carefully consider any information which suggested that a site under threat was likely to qualify. I am not persuaded that the decision in this case was based upon other than a genuine opinion that the statutory criteria were satisfied.
27. Further correspondence making and rejecting many of the points which have been aired in this claim ensued. In the course of it in a letter of 24 June 2005, CCW said this:-

"Evidence to date indicates that species-rich hay meadows do not support exceptional populations of grassland fungi and that most free-draining circum-neutral to basic soils in the lowlands have been subject to damaging agricultural or horticultural intensification or otherwise unsuitable uses and that suitable habitat for grassland fungi throughout the whole of Western Europe is exceedingly scarce. We have also considered the possible existence of other significant areas of ancient, unfertilised lawns or turf regularly mown for 50 years or more in Glamorgan, likely to support a greater diversity of grassland fungi than Llanishen, and which would have been excluded from Mycological Survey of Selected Semi-natural Grasslands. We have failed to locate any. Whilst Ray Woods is satisfied that the grassland fungi at Llanishen Reservoir are of such merit as to warrant consideration for SSSI notification, we are keen to pursue your client's offer to commission further survey work. Such work will be directed at identifying the precious few remaining examples of such habitat in Wales and we will be pleased to co-operate with you to make the necessary arrangements."

The relevant material was put before the Directors' Team asking them to approve the notification. This they did on 25 July 2005. The minutes of the meeting show that the Team asked whether there were other sites in Wales and the AOS and were informed that this was the best site in the AOS. It was correctly ranked as the joint 5^th highest scoring site in Wales but was the only one under imminent threat. While the development proposals would keep some of the embankments so that the species would be retained, it would render what was left vulnerable to damage for any reason, particularly having regard to the lack of other populations in the vicinity.

28. In the proposed notification, reference was made to there being over 25 species of waxcap Hygrocybe. This more conservative figure was used because of the possibility that there had been over identification of very similar species, but the figure is likely to be 28. There were 3 other sites referred to as comparisons but this was said:-

"NB – Llanishen and Lisvane reservoir Embankments have been subject to a higher intensity of survey than the other Glamorgan sites listed above. However experience has shown that one particular group of waxcap species is found on sites that, when subject to regular and detailed survey, prove to be particularly species rich. Those members of this group found at Llanishen are Hygrocybe punicea, H. ingrata and H. splendidissima. These species are given the highest scores in the evaluation system of McHugh et al, (refer to Annex 2 for details of the scoring system) which forms the basis of the current SSSI waxcap fungus site selection process. There are in addition 12 further species of grassland fungi recorded from Llanishen that are good indicators of high quality sites. By the use of this scoring system mediocre sites subject to intensive survey can be sieved out of the selection process, whilst more important sites can be identified from less intensive surveys."

29. On 14 September 2005, there was a meeting with representatives of the claimants with a view to trying to achieve the development of the site while protecting its ecological interest. Dr Gibson made the point that fungi were under studied and there existed very little robust data for assessing comparative value sites. This was answered by Mr Woods by noting that Llanishen had twice as many species as the next best site within the search area and was far the best site. Information about other sites was "unlikely to greatly diminish its value".
30. On 26 September 2005, the notification was made. On 18 October 2005, the claimants' solicitors wrote to CCW indicating that preliminary surveys had been undertaken which showed that there was a substantial unsurveyed waxcap grassland population, asking for CCW to undertake its own survey urgently since the fruiting season was well under way and requesting withdrawal of the notification and a proper survey of all other sites in Wales and in the AOS so as to assess properly the significance of the Llanishen site. CCW replied by indicating that the material produced would be carefully considered when it decided whether or not to confirm the notification, but it would not withdraw it. This led to a lengthy pre-action protocol letter of 11 November 2005 setting out the matters upon which reliance was and has been placed. A reply of 14 November 2005 indicated that it would in the Council's view be unlawful to withdraw since there was no error of law in the decision to notify and in any event the matters raised would be considered at the confirmation hearing.
31. On 28 November a detailed response was sent. This referred to information which had come into CCW's possession (again as a result of an environmental statement) of a site in Methyr in the AOS which was an uplands site, which scored 2 points higher than Llanishen and which was being considered for notification. This is called Rhyd y Car where some 31 or even 32 species have been recorded. This has been heavily relied on as showing that there not only are other comparable or better sites in the AOS but also that CCW's failure to join in with and await the results of the proposed survey of possible sites was in the circumstances unreasonable. Otherwise, it contained a detailed regurgitation of the points made in the pre-action protocol letter.
32. These proceedings were commenced on 9 December 2005. I have no doubt that they were premature. The procedure set out in the Act provided the opportunity to make representations against confirmation and CCW's procedure enabled an objector such as the claimant to attend a public meeting of the Council. Normally, only 10 minutes were allowed for oral representations, but in due course in this case over 1 hour was permitted. In addition, written material could be submitted and would be and was taken into account. Despite lodging this claim, the claimants sensibly made written representations with a view to contesting the confirmation.
33. The papers were not put to a judge to consider permission until after the confirmation had been agreed by the Council on 6 February 2006. Richards LJ, sitting as a High Court judge, granted permission on 6 March 2006. It was necessary to amend the claim to deal with the confirmation. Mr Steel has accepted that I should concentrate on the confirmation since, if that is quashed, the notification cannot be maintained since more than 9 months have now elapsed since September 2005. The arguments that he has deployed against the whole process are of course material in considering the lawfulness of the final decision to confirm.
34. A further report from Dr Gibson arguing his case was produced. This led to a detailed response from CCW. In a letter of 6 January 2006, CCW's solicitors set out reasons for rejecting Dr Gibson's methodology and for adopting that applied by Mr Woods and Dr Giffiths, the additional expert instructed by CCW. Mr Steel attacks the criticism contained in it that the data used by Dr Gibson was based on single visits to each site. The point is made that this misunderstands or certainly does not counter the indication relied on by Dr Gibson that there would be likely to be more diversity than that found on a single visit. It is to be noted that in his report, Dr Gibson said:-

"On the basis of the current survey findings Llanishen Reservoir still has the highest total number of waxcap species … However, the recent survey findings suggest that there may be other sites in the study area that have a similar number of species. This is particularly the case since the survey was mostly confined to publicly accessible and unenclosed upland areas. This represents only a tiny fraction of the potentially good habitat for grassland fungi in the study area, especially as grazing intensity is generally higher within enclosed land rather than unenclosed CROW land."

The reference to upland sites is important. Rhyd y Car is such a site and they are different from sites such as Llanishen. In any event, whether or not there is any validity in Mr Steel's points, single visits may but not must indicate the likelihood of greater diversity and it cannot mean that Llanishen should not be notified if because of the diversity there it qualifies.

35. On 19 January 2006 CCW produced a detailed analysis of the Llanishen site. It explained why it was regarded as notifiable and responded to the claimants' arguments and Dr Gibson's reports. Inter alia, it stated as follows under the subheading 'Survey Results':-

"Even if CCW did not have concerns about the survey methods used by WPD/Bioscan, the survey results do not alter its opinion that Llanishen and Lisvane reservoir embankments are of special interest, for the following reasons:

The survey of Glamorgan sites has identified a few sites worthy of further study. However, none of the sites appear to come sufficiently close to Llanishen in terms of diversity to alter CCW's opinion that Llanishen and Lisvane Reservoir embankments are of special interest. The scoping survey found no site with more than 8 Hygrocybe species (including 2 uncertain determinations) with a maximum modified McHugh et al score of 13. Taking the scoping survey, along with the quadrat survey and pooling all the data and including species the identification of which could not be confirmed, the most diverse and highest scoring site was Llantrisant Common with 22 Hygrocybe species and a score of 36. This is above the threshold for consideration as a potential SSSI and is a priority for further survey. In addition Radyr Cricket Club, Ogmore Pant y Cwteri and Ogmore/Old Castle Down in particular also appear to be sites meriting further survey.

It should be noted that a large part of Llantrisant Common (including possibly the area surveyed for fungi) is already a SSSI on account of its grassland.

Dr Gibson concludes that "on the basis of the current survey findings Llanishen still has the highest total number of waxcap species (even if H.aurantiosplendens is discounted)."

Even if another site had been identified which matched Llanishen in diversity and was also a similar type (viz lowland), it is probable that CCW would still consider Llanishen and Lisvane Reservoir Embankments to be of special interest and would consider notifying the site as a SSSI, as more than one site can be selected in the Area of Search."

There was annexed a lengthy and detailed consideration and rejection of Dr Gibson's conclusions by Dr Griffiths, running to some 18 pages. I do not need to refer to it in any detail. It suffices to cite two of its concluding paragraphs:-

"c. This level of species-richness for Hygrocybe spp. places this site equal 10^th in the U.K. rankings and equal 5^th in Wales. Since sites of high Hygrocybe diversity are relatively abundant in the U.K. (especially Wales) compared to other EU states, it is likely that Llanishen and the sites that rank above it (Table 1), would still rank highly on a European level (e.g. the best site in Netherlands has 24 spp. (Arnolds, 1995) while Denmark and Norway have only one site each with more than 28 spp. (Boertmann, 1995b, Jordal, pers.comm). Outside northern Europe 'waxcap grasslands' are virtually unknown (in most parts of the world Hygrocybe spp. Are found in woodlands) and none to our knowledge have been found to have anywhere near the species-richness present at Llanishen. The site is therefore clearly of international importance.

d. In addition to its importance in terms of simple Hygrocybe species-richness, the Llanishen site represents an unusual type of 'artificial grassland' more akin to the various lawn habitats such as Roecliffe Manor and Llanerchaeron (neither of which host as many Hygrocybe spp.) than the extensively managed upland grasslands which comprise the bulk of sites represent in Table 1. That a site of relatively recent (and precisely known) construction age should be so species-rich is in itself interesting and adds to the significance of the site in conservation terms."

36. The Council had before it all the material produced by and correspondence with the claimants and their solicitors. There were representations from a number of mycologists both from England and Wales and continental Europe which supported the notification. It also had the documentation produced by Dr Griffiths to which I have just referred. In addition, it heard from Mr Steel. Questions were put to Dr Gibson and to Mr Woods. Mr Woods confirmed that it was his view that even if other sites came forward which were as good as or perhaps better than Llanishen, it would still qualify on its own merits. At the hearing, Mr Steel advocated what was described as a 'stop, look and listen' policy, namely that there were likely to be other sites as good or better and so it was unnecessary and would be wrong to confirm Llanishen.
37. The decision was in the end based on the acceptance that the number of the species found at Llanishen justified the notification. Whether or not it was the best site was not the issue. I have no doubt that the Council was entitled to conclude as it did. There was ample evidence before it (and Dr Gibson did not dissent) that the number of species made this an important site. Looking at it more widely than the United Kingdom, it was of international importance by reason of those numbers. The considerations that it was a lowland site and comprised land which was man made and of relatively recent origin added to its interest.
38. The policy CCW P 03 50(C) was not applied. At the outset of the meeting, this was said:-

"Your duty is to confirm the site if you consider it to be of special interest. The fact that it is not under current threat is irrelevant, similarly the fact that any owner may be prepared to co-operate with CCW is irrelevant whether the site should be confirmed."

This surprised Mr Steel, but it has meant that any arguments based on the unlawfulness of that policy must fall away. It was withdrawn because it failed to comply with the statutory obligation to notify if the relevant criteria were met. Mr Steel argues that resources can be taken into account and the withdrawal of the policy means that consideration should be given to finding the best site so that its protection can be ensured. There is little point in notifying if the site cannot because of a lack of resources be protected. The simple answer to that submission is that resource considerations cannot play apart in deciding whether a site meets the necessary criteria. If it does, it must be notified.

39. I should note the argument propounded by Mr Howell that, although CCW may be obliged to take reasonable steps to acquire any information which it is necessary for it to have to make its decision, that does not mean that it must not decide until it has exhausted every possible avenue of investigation. Mr Howell submits that it is required to do no more than is reasonable in the circumstances of a given case or, to put it the other way round, its decision will only be quashed if the court decides that it was taken in the absence of information without which no reasonable person could have taken the decision. He relies on R v Westminster LBC ex p Monahan [1990] 1 Q.B. 87. It is suggested that it was not reasonable at least not to have joined in and followed up the surveys suggested by the claimants. I accept that Mr Howell's is the right test. As I have already indicated, I am satisfied that, because it was entitled to rely on the approach adopted by Mr Woods and confirmed by Dr Griffiths, it was not necessary to obtain the further information. It would not have made any difference to the result.
40. The identification of possible sites will continue. If it transpires that there are indeed better sites which include the features of Llanishen, denotification can take place. Furthermore, the notification does not necessarily preclude development at least of part of the reservoirs.
41. I am conscious that I have not gone into any great detail in this judgment in relation to the evidence or, indeed to counsels' lengthy arguments. If I had, this judgment would have been of inordinate length. For the reasons I have given, it was in my view unnecessary to do so. In the final analysis, the decision was based on the recognition that this site contained 28 of the 35 waxcap species and so for that reason alone was capable of meeting the relevant criteria. In those circumstances, it is impossible to say that notification was wrong in law.
42. It follows that this claim must be and is dismissed.