England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		23 August 2012

INTRODUCTION

1. This is an application made by the Claimant, Ms Eaton, for interim injunctive relief against the Interested Party, RWE Npower Renewables Limited ("RWE") to prevent the continuation of its construction of a 10-turbine windfarm at Hockley Farm, Bradwell-on-Sea, Essex ("the Windfarm") which began on 12 March 2012 ("the Injunction Application"). If construction continues as planned, the Windfarm is likely to become fully operational by Spring 2013. The basis of the application is the actual or threatened commission by RWE of offences under s1 of the Wildlife and Countryside Act 1981 ("the 1981 Act") (transposing relevant provisions of the predecessor to the Wild Birds Directive 2009 – "the Wild Birds Directive") and under Reg. 41 of The Conservation of Habitats and Species Regulations 2010 ("the 2010 Regulations") (transposing relevant provisions of the Habitats Directive 1992 – "the Habitats Directive"), by reason of the death of protected species of birds and bats as a result of collision with the turbine blades and/or disturbance due to the ongoing process of construction.
2. Ms Eaton lives near to the proposed Windfarm and is a member of a residents group called BATTLE which is opposed to it.
3. The substantive proceedings within which the Injunction Application is made consist of Ms Eaton's claim for judicial review against the Defendant, Natural England ("NE"), commenced on 27 June 2012. The central allegation here is that that NE unlawfully failed to seek an injunction in its own right against RWE to prevent the commission of the alleged offences and/or (in relation to bats) to require RWE to apply for the relevant licence so as to render lawful the erection and construction of the Windfarm. The question of permission has not yet been dealt with. Given the issues between the parties I indicated at the beginning of the hearing that I was minded to deal with permission at the same time as the injunction. Accordingly, I invited and received submissions from all parties on that question as well, although in the light of certain objections from Ms Ring, solicitor for Ms Eaton, I reserved the right not to deal with permission at this stage if that seemed the appropriate course after all. I deal with permission in paragraphs 73-75 below.
4. There is also before me an application by Ms Eaton for a Protective Costs Order as against NE and RWE, which is resisted. I deal with that in paragraphs 76-81 below.
5. Ms Eaton seeks the Injunction to remain in place until the disposal of the Main Claim, as to which she seeks, at an early stage, a substantive hearing if permission is granted on paper and a rolled-up hearing if it is not. If such a hearing arises it can be accommodated in late October although probably outside London.

BACKGROUND

6. The Windfarm's turbines will each be 121m high to blade tip. The Windfarm itself is on the Dengie peninsula and is 600m from the boundary of the Dengie Special Protection Area ("SPA") for wild birds, designated as such under the 1979 Directive on the Conservation of Wild Birds. As one would expect, an extensive and detailed Environmental Statement ("ES") was produced by RWE in relation to its application for planning permission. Initially, both the RSPB and NE made objections.
7. Planning permission for the Windfarm was refused by Maldon District Council ("the Council") on 7 July 2006. RWE appealed but before the public inquiry took place, the RSBP withdrew its objection on 26 November 2006 and NE withdrew its objection on 27 April 2007. Following a public inquiry in June 2007 the Inspector allowed the appeal on 10 September 2007. However, this was quashed by consent of all parties on 23 June 2008 on the basis of drafting errors in certain of the conditions. A further public inquiry was held and on 25 January 2010 the Inspector allowed the appeal and granted permission subject to conditions. In paragraphs 90-94 of his decision letter, he held (following the views of the first Inspector) that on the basis of existing survey evidence there was unlikely to be any significant effect from the Windfarm on either bats or birds. Condition 22 required a pre-construction survey in respect of bats (but not birds) to be submitted and approved by the Council. This was complied with.
8. The Inspector's decision was however, the subject of a further High Court challenge made by Mr Lee, another member of BATTLE. Originally, part of that challenge was the allegation that the Inspector himself had acted in breach of the 2010 Regulations but this was abandoned just before the hearing as a result of the decision of the Supreme Court in R (Morge) v Hampshire County Council [2011] 1 WLR 268. On 4 March 2011, the Judge dismissed all of the remaining challenges.
9. Members of BATTLE had objected to RWE's application for planning permission from the outset and took part in both inquiries.
10. Given the issues which arise on the Injunction Application it is necessary to set out in some detail the evidence concerning the risk to the local bird and bat population from (a) the operation and (b) the construction of the Windfarm.

RISK TO BIRDS – THE EVIDENCE

Risk when the Windfarm is operational

11. The starting point is Section 6 of the expert ornithological assessment in the ES produced in February 2006. Part of this very detailed section deals with the risk of birds colliding with the turbine blades once the Windfarm is operational. Paragraphs 6.4.5-6.4.10 together with Tables 6.14 and 6.15 are key. A sophisticated analysis was undertaken of the number of birds in the locale likely to fly into the area around the Windfarm and the risk that they would collide with a blade, assuming no avoiding action was taken. To that figure the ES then applied two different avoidance rates being 95% and 99%. For all the relevant birds save the golden plover, whether the avoidance rate was higher or lower the number of collisions per year, predicted on a precautionary basis, was such that it would have added less than 1% to the baseline annual mortality rate. The threshold for considering any increase as being significant for any of the relevant bird's populations was taken as 1%. As for the golden plover, 90 annual collisions would give a 1% increase, the relevant population being 25,000 with a baseline annual mortality rate of 36%. If the avoidance rate was only 95% (as then used by Scottish Natural Heritage ("SNH") but described in the ES as "highly precautionary") the number of predicted collisions per year would be 251 ie well above the threshold. But at a rate of 99% it would be only 50.4, ie well below. The "tipping point" would be an avoidance rate of anything less than 98.5%. The ES also noted that information from existing windfarms suggested that the true avoidance rate was very likely to be higher. The latter evidence suggested between 0-10 annual collisions. See table 6.14. On that footing the collision risk for golden plovers was "negligible". See table 6.15. It was also pointed out that an RSPB study showed that shorebirds such as the golden plover were not particularly sensitive to the risk of collision.
12. Since then SNH has revised its "default" avoidance rate to 98% ie for those birds where there is no avoidance rate calculated by reference to specific evidence. That is the rate applied to the golden plover. It is therefore just under the tipping point and if correct would yield about 100 predicted collisions per year.
13. NE assessed the evidence in the ES and following further discussion with and information from RWE (in particular its Ecology Consultant Dr Steve Percival) on the issue, agreed that the collision risk for all the relevant birds was negligible and was unlikely to have any adverse impact on the conservation status of any wild bird species, hence the withdrawal of its prior objection and that remains its view. See paragraph 38-46 of the witness statement ("WS") of Matthew Heydon, NE's Principal Specialist for Species Regulation. Although NE was not objecting by the time of the second public inquiry, this was in effect the conclusion of the Inspectors also.
14. Ms Eaton argues that the true number of predicted collisions per year is above 0-10. She relies not only on the SNH rate but also makes further points. For example it is said that evidence can or would show that since golden plovers fly in flocks if one of them collided with a blade, then many more within the same flock would do so as well. But there is no actual evidence about that before me. Given the issues involved in the Injunction Application and the relative age of the ES by now, if Ms Eaton wanted to adduce such evidence she could and should have done so before this hearing.
15. Indeed for much of her submissions, Ms Ring was content to accept for the purposes of argument a prediction of 0-10 golden plover collisions annually. This is because of her legal submission that if RWE operates the Windfarm with knowledge of the risk that even one golden plover would collide each year, it will be guilty of the offence of deliberate killing, assuming of course, that a golden plover did in fact die in that way. I see no reason not to proceed on the basis of a predicted rate of 0-10.

Risk due to construction works

16. The ES stated that if construction was planned to take place in the breeding season (described there as April to July but it could run until September) a further survey would be undertaken before it started, to identify any birds which may be affected and ensure that appropriate mitigation measures were taken. Although concern is expressed by Ms Eaton that such works (which did take place within the breeding season) would disturb and displace birds, she has adduced no evidence that this has happened since March. I accept that this might be difficult for Ms Eaton to show since it is unlikely that she could gain access to the Windfarm site but on the other hand, there is clear and positive evidence, set out in the second WS of Mr Williams, RWE's Project Manager and that of Mr Ryell, its Implementation Manager, both dated 9 August, and the exhibits thereto, that so far as RWE knows, no birds have been harmed or killed nor were there any nesting or breeding birds in the relevant area which could have been disturbed or displaced. It is worth giving a flavour of the work done in this regard. There were four surveys for breeding birds between May and June 2011 and a final one on 20 February 2012 ie just before construction work started. Appropriate mitigation measures were undertaken in the light of that which included using bird scaring devices to dissuade birds from nesting in hedgerows near the bellmouth entrance. The final survey revealed no nesting birds in the hedgerow – this could be checked properly because the vegetation was sparse. One reason for the removal of vegetation was to discourage birds nesting in those areas. The ecologist was then on site periodically in April, May and June when he checked for breeding birds.
17. Ms Ring has made various criticisms of this. She points out, correctly, that the pre-construction breeding bird survey said that a total of 24 notable and protected birds were recorded breeding at the site with the overall assemblage of at least District or potentially County importance. She then says that if no such birds were found nesting or breeding by February 2012 this indicates their displacement by construction works. But those works had not started in earnest at that time, and in any event, as recommended by the same report, RWE had employed mitigation measures like vegetation clearance to discourage the birds from returning, precisely so that they would not be disturbed while nesting or breeding. She also says that the surveys in 2011 and 2012 were inadequate because the ES referred in paragraph 6.5.2 to birds found breeding in the Study Area which is much larger than the site of the Windfarm. But this ignores the point then being made which was that birds nesting in the Study Area (ie close to but not within the site) might potentially breed within the site. Hence the need to monitor the site, which was done. She then says that the same paragraph recommended a survey immediately before construction started, yet as matters transpired July 2011 was not immediately before; but on the other hand there were later surveys including one just before. She also submits that checking the hedgerows is not enough – the whole area should be surveyed. But that ignores the obvious fact that it is not the case that birds would breed at any point within the site. One is entitled to assume that an ecologist employed for the purpose of seeing whether there were any breeding birds would look where one might expect to find them – such as in a hedgerow. Finally, Ms Ring notes that piling for the turbines themselves may be starting shortly. She says that this will be noisy and is very likely to disturb birds on site. But that is speculative, the evidence suggested no breeding birds there anyway, and any disturbance after September would be of much less importance.

RISK TO BATS – THE EVIDENCE

Risk when the Windfarm is operational

18. The specialist bat survey required by Condition 22 ("the Bat Survey") was produced on 4 February 2011 by The Ecology Consultancy. It noted that fatalities due to wind turbines could occur not only as a result of collisions but also due to barotraumas ie internal injuries sustained as a result of suddenly flying into areas of rapid pressure reduction near the blades which bats cannot detect. See paragraph 1.13. Bats were noted in the Windfarm site though mainly in linear features or sheltered areas. To a far lesser extent were bats recorded flying across fields in the vicinity of the proposed turbines. The two particular high risk species noted in the location were noctules and Narthusius pipistrelle bats. While the potential for collision could not be discounted there was no evidence to suggest that such high risk species were regularly flying in the turbine areas. Because of that, the risk to their conservation status was described as low and low to moderate respectively. The survey recommended, in accordance with current NE guidance, that there should be a buffer of at least 500m from any roosts and that the layout of the Windfarm complied with this. The Bat Survey also recommended further mitigation measures to attract the local bat population away from the turbine areas even though activity there was low to begin with, together with monitoring during operations and if significant collision fatalities were observed RWE should consider how to alter the operational regime to reduce such impact – see paragraph 6.5. The results and recommendations of the Bat Survey were approved by the Council and Condition 22 discharged. Further bat surveys were conducted in May 2011 and February 2012.
19. There was no obligation on RWE to serve the Bat Survey on NE and it did not do so at the time. But NE did see and review it in early 2012 and takes the view that it gives no cause for concern – see paragraphs 50-59 of Mr Heydon's WS. I was referred to recent NE Guidance on bats and onshore wind turbines from February 2012, but saw no conflict between the general observations there and the specialist bat survey findings for this site and Mr Heydon's view thereon.
20. Accordingly, while collision risk for the high risk species cannot be removed altogether the fact remains that activity in the turbine area is low and there is the prospect of further mitigation if necessary. Ms Ring said that the Bat Survey did not consider fatalities from barotrauma, but as indicated above, it did and in any event if this occurred it would be in the vicinity of the blades and the real point here is that the level of flying activity here is expected to be low.

Risk due to construction works

21. Ms Ring's submissions in respect of construction works really focused on birds and it is not suggested that any roosts have been or will be affected by such works, nor is there any evidence of harm or death to bats since construction began. Accordingly, I need say no more about this.

SERIOUS ISSUE TO BE TRIED

Introduction

22. An analysis of the Main Claim (ie by way of JR as against NE) is key because Ms Eaton contends that the Injunction Application is simply ancillary to that claim. It is not a free-standing private law claim for an injunction against RWE. Consequently for the purposes of American Cyanamid principles the "serious issue to be tried" is to be found, if at all, in the underlying merits of the Main Claim. This is common ground between the parties.

The Relevant Offences

Birds

23. Article 5 of the Wild Birds Directive provides that:

"Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:

(a) deliberate killing or capture by any method;

(d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;"

24. Section 1 (1) of the 1981 Act provides that

"Subject to the provisions of this Part, if any person intentionally—

(a) kills, injures or takes any wild bird;….he shall be guilty of an offence."

25. In addition s4 (2) (c) provides a person shall not be guilty of any such offence by reason of any act made unlawful by that provision if he shows that it was "the incidental result of a lawful operation and could not reasonably have been avoided."
26. There are also licensing provisions within the 1981 Act so that if a person obtains a licence on one or more of various grounds he will not be guilty of an offence under, for example s1 if he kills or injures a relevant bird. But there are no grounds on which RWE could obtain a licence here.

Bats

27. Article 12 of the Habitats Directive provides as follows:

"1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:…..all forms of deliberate capture or killing of specimens of these species in the wild;…..deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;…

4. Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV (a). In the light of the information gathered, Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned."

28. Reg. 41 (1) (a) of the 2010 Regulations provides that a person who deliberately captures, injures or kills any wild animal of a protected species is guilty of an offence.
29. Reg. 53 then provides for licences available on grounds somewhat wider than under the 1981 Act. One ground is the purpose of an "imperative reason of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment". In theory that might be available to RWE given the environmental significance of the Windfarm. But as already noted it has not sought one, nor has NE suggested one to it, because neither party believes that a criminal offence will be committed by the operation of the Windfarm anyway.

The Central Allegation

30. Ms Eaton contends that on the basis (a) of her interpretation of the relevant offences and (b) the existence of at least the risk of some bird and bat fatalities, it is inevitable that by reason of the Windfarm operating RWE will commit those offences. She then alleges that NE has acted unlawfully in a JR sense because it could and should, at least since early 2012 following pre-action protocol correspondence, have sought an appropriate permanent injunction against RWE to prevent it committing those offences ie to cease construction of the Windfarm so that it would never operate. Further or alternatively and in relation to bats only, it should have considered that to avoid committing the offences under the 2010 Regulations, RWE should have applied for a licence and NE should have in some way compelled RWE to make that application.

Relief sought against NE

31. However, Ms Ring made plain at the outset of the hearing before me that Ms Eaton was not seeking by way of JR relief as against NE, a mandatory order requiring it either now to seek such an injunction or to give consideration as to whether it should apply. Instead, by the Main Claim, Ms Eaton applies to the Court directly to grant such a permanent injunction against RWE. It does that on the basis that the Court should now step in directly where NE has failed to act so as to secure compliance with the underlying Directive obligations of RWE in relation to birds and bats. The only relief to be sought against NE would be a declaration that it has acted unlawfully in the past by not seeking such an injunction and by not forcing the issue of a licence with RWE.
32. On that basis it will be apparent that there is a fundamental difficulty with the Main Claim because in truth no useful relief is being sought against NE at all. It is not as if the making of a declaration of NE's unlawful failure to act would be a platform for a damages claim by Ms Eaton because she makes no such claim nor could she. NE does not contend that it would be impossible as a matter of law for it to seek an injunction in an appropriate case (although it appears not to have done so to date), as opposed to simply initiating a prosecution where an offence has been committed but it says first, that there was no conceivable warrant for it to do so in this case and second, any such power is irrelevant since Ms Eaton is not asking the Court to order NE to exercise it.
33. Ms Ring says that even without any real relief sought against NE, this is still a proper JR claim because the Court can and should step in as a result of NE's defaults. Otherwise, it is said, how can compliance with the Directives be secured? She relies here on the decision of HHJ Mole QC in Ardagh Glass v Chester City Council [2009] EWHC 745 (Admin). But in that case the Court found that the Defendant Council had acted unlawfully in failing to issue an enforcement notice against the Interested Party who had plainly built without planning permission and so it made a mandatory order to compel the Council to exercise immediately its undoubted power to serve that notice so that the Interested Party could not later become immune from such action. That was a conventional JR claim, where substantive relief was sought against the Defendant. It is no authority for the much broader principle contended for that I should now make a permanent order directly against RWE. The rhetorical question "If not, how does one secure Directive compliance?" is a misleading one. The compliance mechanism enacted is the creation of criminal offences.
34. Ms Ring also relied upon the decision of the European Court in Factortame No. 1 19 June 1990 C-213/89. Here a group of fishing companies claimed to be entitled to fishing rights under Community law which had direct effect and brought JR proceedings to challenge the compatibility with Community law the anti- "quota-hopping" regulations recently introduced in the UK. Ancillary to that they sought interim relief to enable them to fish in the meantime. The House of Lords referred a question to the European Court under Art. 177 as to whether it had the power to grant relief given the common-law rule that an injunction could not be granted against the Crown and that legislation is presumed to conform to Community law until its compatibility has been decided. The European Court held that in a case concerning Community law if the sole obstacle to the grant of relief is a rule of national law, then that rule should be disapplied. But that has no bearing on the present case. First Ms Eaton is not claiming that she has EU rights with direct effect. Second the duties imposed by the relevant Directives here had already been given effect by the imposition of criminal sanctions for non-compliance.

The Real Claim

35. Mr Pike, for NE and Mr Howell Williams for RWE, contend that in truth NE is not really a Defendant to this JR claim at all. It might as well drop out of the picture now. They claim that this is really a private law dispute between Ms Eaton and RWE and what she is really doing is seeking both an interim and a permanent injunction against RWE on a quia timet basis to prevent it from committing criminal offences in the future. Although Ms Ring insists that there is some useful purpose in the Main Claim and that Mr Pike's characterisation is wrong, I agree with him.
36. But if in truth the Injunction Application is ancillary not to the Main Claim against NE but rather to a separate claim for a permanent injunction against RWE it then faces two serious difficulties. First, it should never have been made within a JR claim but rather as a conventional Part 7 claim. Second, even if that procedural irregularity could be cured, Ms Eaton would have no locus to make such a claim. That is because she cannot seek an injunction to prevent the commission of criminal offences as a private citizen unless she can show that she has by reason thereof she has or would suffer some individual loss on a tortious basis – see Gouriet v Union of Post Office Workers [1978] AC 435. Ms Ring did not challenge that proposition of law, nor could she. Nor can it be suggested that Ms Eaton has or will suffer some individual loss.
37. Ms Ring seeks to avoid that conclusion by arguing that this case is different because Ms Eaton is not seeking an injunction to prevent the commission of criminal offences but rather to secure compliance with RWE's Directive obligations. But there is nothing in this. The UK, as a Member State, has chosen to discharge its Directive obligations to prevent the killing of birds etc by making it a criminal offence so to do. That is an unexceptional way of securing such prevention. That being so, the injunction is indeed to prevent the commission of such offences. If Ms Eaton wished to argue that the UK has failed in its Directive obligations as a Member State, on any view, neither NE nor RWE would be the correct Defendant.

The Position thus far

38. In those circumstances there is in truth no serious issue to be tried either in relation to the Main Claim or any free-standing claim against RWE. That is sufficient to dispose of the Injunction Application. But in deference to the extensive argument on other matters relating to serious issue to be tried, I deal with them below.

The inevitability or high likelihood of commission of offences

39. The central allegation made by Ms Eaton, that the operation of the Windfarm must without more entail the commission of the relevant offences, arises as follows. First, it is said that by the plain words of s1 of the 1981 Act and Reg. 42 of the 2010 Regulations, if (a) RWE proceeds with operations on the Windfarm when it knows that there is at least some risk that one or more birds or bats will fatally collide with a blade and (b) one or more of them does so collide, it has committed the offence of deliberate killing a specimen of the species. On any view that might seem an odd result and it is certainly not one which can be drawn simply from the words which require "deliberate [or intentional] killing". On the face of it, this would not be deliberate.
40. Secondly, however, Ms Eaton prays in aid the European Commission's 2007 "Guidance Document on the strict protection of animal species of Community Interest under the Habitats Directive" ("the Guidance"). Particular emphasis is placed on paragraphs 30 – 33 which read as follows.

"(30) This prohibition [Art. 12 (1) (a) ] is important as it is linked with the population of a species (its size, dynamics, etc.), which constitutes one of the criteria under Article l (i) for assessing the conservation status of a species. Killing or capture may lead to an immediate, direct (quantitative) decline in a population, or could have other more indirect (qualitative) negative effects. The prohibition covers deliberate capture or killing, not incidental capture or killing, which falls under Article 12(4).

(31) In Case C-103/00, the Court referred to the element of "intent", observing that: "the use of mopeds on the breeding beaches was prohibited and notices indicating the presence
of turtle nests on the beaches had been erected. As regards the sea area around Gerakas
and Dafni, it had been classified as an absolute protection area and special notices had been
erected there." Despite the information available to the public on the need to protect these areas, the persons on the beach committed the infringements. This constituted a failure of enforcement. Thus, the Court "seems to interpret the term 'deliberate' in the sense of conscious acceptance of consequences". [This was the Commission v Greece case]

(32) In Case C-221/04, the reasoning of the Court was more specific. In that case, the Commission brought an action before the Court because, due to the authorisation by the authorities..of snares in several private hunting areas, Spain had failed to comply with Article 12(l)(a) as regards the protection of the otter ... The Court recalled the findings of the [Greece] case and stated that "for the condition as to 'deliberate' action in Article 12(l)(a) of the directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing". This is used as a "requisite criterion" by the Court, which in the present case found that the contested permit related to fox hunting and accordingly was not in itself intended to allow the capture of otters. In addition, the Court stressed that the presence of otters in the area concerned had not been formally proven, so that it had also not been established that the Spanish authorities knew that they risked endangering otters by issuing the contested permit for fox hunting. Thus, the Court concluded that the requisite criteria for determining that the capture or killing of a specimen belonging to a protected animal species was deliberate had not been met.

(33) On the basis of the approach taken by the Court in cases C-103/00 and C-221/04, the following definition could be proposed: "Deliberate" actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable results of his action. In other words, not only a person who fully intends to capture or kill a specimen of an animal commits an offence: an offence is also committed by a person who might not intend to capture or kill a specimen but is sufficiently informed and aware of the consequences his action will most likely have and nevertheless performs the action, leading to the capturing or killing of specimens)(e.g. as an unwanted but accepted side-effect), with reckless disregard of the known prohibitions (conditional intent). It goes without saying that negligence is not included in the meaning of "deliberate"."

41. Paragraph 33 was approved by Lord Brown in Morge albeit in the somewhat different context of Art 12 (1) (b) of the Habitats Directive in relation to disturbance of the protected species. In paragraph 14 of his judgment, having cited part of paragraph 33 he stated:

"Put more simply, a deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species. The critical, and altogether more difficult, question is what precisely in this context is meant by "disturbance".

42. I accept that the relevant offences especially as transposed into the 1981 Act and the 2010 Regulations refer to the deliberate killing of any (ie single) bird or bat, as opposed to action in relation to their species and that in a paradigm case of the deliberate targeting and killing of one of them, for example by unauthorised hunting, the offence is made out. But once one leaves that very clear territory there must be limits to criminal liability where it is alleged in relation to some entirely different activity but with knowledge of a certain risk. That is evident from the terms of Art. 12 (4) (see paragraph 27 above) and its reference to incidental killing. That expression cannot be confined to the case of a one-off accident (in such a case there is obviously no offence) because the subjects of Art. 12 (4) are surely particular activities where, as incidents of or to them, the killing of bats (for example) may occur from time to time. The point at which Member States are enjoined to take action is when such incidental killing has a significant impact on the species as a whole.
43. Thus the Guidance states at paragraphs 81-83.

"81. Article 12(4) requires the establishment of a system to monitor the incidental capture and killing of the animal species listed in Annex IV(a). In the light of the information gathered, Member States have to undertake further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.

82. It should be stressed that Article 12(4) could be of relevance in defining the requirements of both a "strict protection system" and an "appropriate surveillance system". A system of strict protection can also make provision for recording the incidental capture and killing of species (for Article 12(4)). In this context, the strict protection measures may ultimately need to include conservation measures required to offset the negative impact of incidental capture and killing.

83. An example for the application of this provision is the monitoring of the by-catch of
Cetaceans in the fisheries sector and the technical measures taken to avoid such incidents
(e.g. attachment of pingers to fishing nets). Another example is the monitoring of bat deaths in wind turbines or roadkills."

44. So the death of bats due to collision with turbines is seen as a an example of incidental killing and thus outwith A12 (1). This point is also emphasised in paragraphs 26 and 28 of the Guidance which state as follows.

"(26). In this context, it should be stressed that the occurrence of protected species in e.g. agricultural land is often the result of traditional land-use and farming practices, usually of an extensive nature. Where land-use practices are clearly supportive of the conservation status of a species under consideration, it is obvious that the continuation of such practices should be encouraged. Accidental disturbance or killing of individuals of the species concerned by such practices needs to be accepted in the interest of the population as a whole (applying proportionality to achieve the overall objective). Where however an ongoing land use (due to changes of practices, intensification, etc.) is clearly damaging to a species, leading to decreases in its population in the area, a Member State is required to find ways to avoid this…

(28) The conclusion that can be drawn is that ongoing activities should best be guided so as to avoid conflicts with the species protection provisions in the first place. Tools such as planning instruments, systems of prior consent, codes of conduct and concrete information or guidance are options here. Such measures should:

a) form part of the "requisite measures" needed under Article 12 to "establish and implement an effective system of strict protection",

b) incorporate the strict protection requirements,

c) offer flexibility, i.e. while recognising that absolute protection for all individuals of a
species cannot be guaranteed, ensure that any harmful action takes full account of
the conservation needs of the species/population concerned,

d) have the advantage that they potentially protect the person engaging in an activity
(i.e. from prosecution) as long as the person adheres to these measures…"

45. I do not accept that "ongoing activities" only mean existing or long-standing activities such that it could not apply to newly-created ones like the Windfarm. The distinction is surely with short-term activities where the risk is for a particular time. Thus for ongoing activities there are a number of tools at the Member States' disposal to ensure that the level of incidental killing does not become too high, including consideration at the planning stage (as happened here) and at the compliance stage (by enacting criminal sanctions). What the Guidance nowhere states is that in an ongoing activity such as a the Windfarm where there is the risk of death of one or more protected animals an offence is necessarily committed.
46. This case is wholly different from the Greece case referred to in paragraph 31 of the Guidance, which was an obvious instance of "reckless disregard".
47. What Ms Ring has done, wrongly in my submission, is to read the Guidance too selectively and then focus on one part as if it were a statute. She argues that her submission is not as unattractive as might first appear because, after all, the turbines could have been located somewhere else. But on her analysis there may still have been the risk of one fatality of bat or bird given that the Wild Birds Directive protects all birds not just those who in this case emanated from the nearby SPA, and bats are commonly to be found in many areas. Indeed, on her analysis even if there was a risk of a fatality once every two or three years that would be sufficient if known and if a death then occurred. She denied that there was any de minimis threshold in these offences at all. On that footing many rural agricultural activities might be exposed to criminal sanctions. I am simply unable to accept this.
48. I quite appreciate that the point at which proceeding in the face of risk becomes criminal if a fatality ensues is a question of fact and degree which both the Guidance and NE recognise. There will come a point where the level of risk in terms of probabilities and numbers affected could, if known, lay the foundation for criminal liability. But that is a long way from this case, given that the evidence (recited in paragraphs 11-15 and 18-20 above) was of a low or negligible risk.
49. Indeed, if Ms Ring is correct then the entire approach of NE to these matters in general (as set out in Mr Heydon's very clear WS which should be read in its entirety) is wholly misconceived. NE's approach reflects the analysis above as to incidental fatalities and what are ongoing activities and takes the view that licences (for bats) will only become appropriate when a particular level of risk with regard to a particular species has been reached. It takes a proportionate and common-sense view of criminal liability and when to initiate criminal proceedings. Moreover, if Ms Ring was correct, it would entail NE as statutory consultee objecting to very many planning applications on the basis of likely breaches of the Directives due to the risk of one fatality.
50. Further, in the case of birds, there is a specific defence. See s4 (2) cited in paragraph 25 above. Clearly the Windfarm is a lawful operation and given the full investigation of the risks posed by the chosen site both before and after permission was granted, it is hard to see why reasonable care was not taken. Indeed Ms Ring's only answer to this defence was that it should be disregarded as being a product of the UK's failure to transpose the Wild Birds Directive accurately into domestic law. She relies on the fact that a defence to the Habitats Directive offences, based on the existence of planning permission, has been removed. Of course, what the 2010 Regulations have which the 1981 Act does not have is a broader right to a license – see paragraph 29 above. But in any event I do not see why a failure to transpose in the case of bats must therefore be implied.
51. Accordingly, even if it were otherwise open to the Court within these JR proceedings to grant a permanent injunction on the footing that at some indeterminate point in the future one or more criminal offences would be, or would at least be likely to be committed by virtue of the operation of the Windfarm, it would not do because it would not on the evidence so find. Equally, there is no arguable basis for suggesting that NE has hitherto acted unlawfully in a JR sense in failing to seek an injunction or actively canvass or force the issue of a bat licence. Ms Ring made a number of further points about NE's approach in paragraphs 32-37 of her Supplemental Skeleton but I do not think there is anything in them and as already stated, no positive relief is sought against NE anyway.
52. Accordingly, this is a further reason why there is no serious issue to be tried.

A Further Bar to an injunction

53. Moreover, there is a disconnect between the Injunction Application and the Main Claim. The latter, such as it is, focuses on the risks once the Windfarm is operational. Even if there were a serious issue here, it is irrelevant because any final hearing would be concluded long before operations started, in 2013. So Ms Eaton should await the outcome and has no need of any interim injunction to stop operations in the meantime. Ms Ring says that even so, there is no point in RWE proceeding to construct the Windfarm if ultimately it is precluded from operating it, but that is a matter for RWE.
54. Ms Ring also says, however, that there is a reason of substance for an injunction now which is not because of the risk of the offences of killing but rather those of disturbance, in particular of nesting and breeding birds, due to the construction process. But the Main Claim is founded upon the offence of deliberate killing, not disturbance. Ms Ring says that if this is the only bar to an interim injunction she should be allowed to amend the grounds of claim. Were it so, I would agree but it is not. First even in amended form there remain the fundamental objections to these proceedings set out in paragraphs 31-38 above. Second, on any view questions of fact and degree of risk do come into play, as do species-related questions where disturbance offences are involved – see Morge. But the evidence shows a low risk of disturbance here for the reasons given in paragraphs 18-20 above. Accordingly, again, and even on an interim basis I could not be satisfied that there was a serious issue to be tried as to the commission of disturbance offences.

Conclusion

55. Thus for all the reasons given above, there is no serious issue to be tried.

BALANCE OF CONVENIENCE

56. However, lest I be wrong about that and in deference to the detailed submissions on balance of convenience, I deal with this as well.

Damages an adequate remedy if injunction wrongly refused

57. I accept that in this event, it would not be possible to compensate Ms Eaton in damages, as a result of the disturbance offences committed (on this hypothesis).
58. I therefore turn to the converse position.

Damages an adequate remedy if injunction wrongly granted

59. I accept the detailed evidence from Mr Williams, a Project Manager employed by RWE contained in his first WS dated 20 July 2012 that RWE would incur significant losses if construction were delayed for 12 weeks assuming an injunction was in place from 7 August to 29 October. That period could be reduced by 2 weeks given when this hearing took place and the date of any judgment. There would be £50,000 demobilisation and remobilisation costs, security costs of £5000 per week, storage charges for the turbine components of £5-7,000 per week and for other plant at £2-4,000 per week. Ms Ring submits that if the turbines were not due to be delivered until December 2012 anyway, those costs would not be incurred because the hearing would have taken place by then. But that ignores the fact that assuming they are manufactured and delivered on schedule, they will not be able to be installed straight away upon arrival as was the original plan because the site will not now be ready to accommodate them in December due to the delay in construction. So they will have to be stored. In total Mr Williams estimates the cost of a 12 week injunction at somewhere between £254-332,000 which does not seem implausible given the size of the project and the different contractors involved. For 10 weeks it will be something less but still substantial. In paragraphs 27 – 34 he sets out further costs which may be incurred as a result of the delay due to the disruption of the programme running up to £500,000 though there is clearly an element of guesswork here.
60. Ms Ring invites me to disregard much or all of this on the basis that the figures are clearly overstated but there is no basis for that in the evidence before me. She also criticises Mr Williams' failure to exhibit the underlying contractual documents but in my view he did not need to.
61. There is no prospect of RWE being compensated for any such losses were the injunction to have been wrongly granted because Ms Eaton is not prepared to offer a cross-undertaking in damages. It cannot be said that she cannot afford any cross-undertaking at all because she owns a house, unencumbered by mortgage worth in the region of £500,000 though possibly less, she says because of the proximity of the Windfarm. Apart from a pension she has a part-time income though she has not said how much. As at the date of the hearing before me, little further information was provided save that Ms Ring estimated Ms Eaton's costs of this claim at about £40,000 plus VAT. Ms Eaton said in paragraph 7 of her first WS that while BATTLE had raised a large amount of money for the last inquiry it would struggle to raise further monies for her due to "donor fatigue". But in paragraph 10 she clearly anticipated that BATTLE would in fact be able to assist considerably because she thought she could just about pay her own costs of the proceedings with BATTLE's assistance. But she did not say how much if any of those costs would come from her and what BATTLE's assets were. Her failure to give disclosure particularly as to BATTLE's position was the subject of adverse comment at the hearing.
62. Then, without any prior notice as far as I am aware, Ms Eaton served a third WS on Friday 17 August itself dated 16 August 2012. I did not see it until Monday 20 August. I invited brief submissions on it but none was made other than NE had said that it was too late and I should disregard it. I have however considered it. The new piece of evidence is that BATTLE has apparently now raised £37,000 via raffles, lottery tickets and individual donations for these proceedings. Ms Eaton says that all of this is committed to her own costs and is likely to be insufficient for them by "quite a large margin". I do not entirely follow that since Ms Ring's costs estimate was £40,000 plus VAT which Ms Eaton said originally could just about be met. Moreover her solicitors are now working on a (hybrid) CFA which means that they will receive only 50% of their fees if they lose. Although Ms Eaton says that it is unlikely that BATTLE will be able to raise much more due to "donor fatigue" it seems to have achieved a considerable sum since the previous round of litigation and what is unclear is whether there are members of BATTLE (which is, on Ms Eaton's own evidence, backing this litigation) who could support a cross-undertaking in damages, regardless of the sums actually raised by BATTLE. So this new evidence does not in fact take the matter much further.
63. In all those circumstances I am not prepared to accept that some form of cross-undertaking cannot be procured.
64. In fact, however, Ms Ring's key point is that the Court should not require a cross-undertaking as a matter of principle under Aarhus Convention principles. Article 9 provides as follows:

"3. In addition…..each Party shall ensure that….members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4. In addition..the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive."

65. It is accepted by Ms Ring that these provisions are not of direct effect. But she relies on the fact that they have been incorporated within the 1985 Environmental Assessment Directive by Art. 10a thereof and as this is an environmental case they are engaged here. I disagree. The EA Directive is concerned with environmental assessments and public participation in the processes connected with them. This is not a case about an alleged breach of that Directive or related domestic provisions concerned with Environmental Impact Assessments. The fact that some of the evidence referred to here arose out of or is contained within RWE's ES for the purpose of the planning application does not turn this claim into a case governed by EA Directive.
66. Ms Ring also relies on the decision of the European Court in Lesoochranarske v Ministerstvo zivotneho prosredia Slovenskej republiky C-240/09 March 2011 in which the Court affirmed that Art. 9 (3) did not have direct effect but that in relation to a species protected by the Habitats Directive the national court, in order to ensure effective judicial protection in fields covered by EU environmental law should interpret its national laws in a way which is to the fullest extent possible consistent with Art. 9 (3)'s objectives. The case before it concerned the locus of an environmental organisation to intervene in proceedings to derogate from certain hunting prohibitions. I do not accept that this decision means that the requirement for a cross-undertaking in any case involving the Habitats Directive must be removed.
67. I note the recommendation in paragraph 82 of the Sullivan Report 2008 that the requirement for a cross-undertaking be removed in Aarhus cases where the injunction is required to prevent "significant environmental damage" and "to preserve the factual basis of the proceedings". But first this is not a typical Aarhus case, where for example it is a challenge to planning permission on environmental grounds, second, Article 10a does not apply, and in any event it cannot be said on the evidence before that between now and a hearing at the end of October, the construction works on site will produce significant environmental damage. Finally, of course, the Sullivan Report deals with recommendations not the current law.
68. Equally the consultation issues identified in the 2010 Ministry of Justice Paper on cross-undertakings take the matter no further. Indeed paragraph 39 suggests that a cross-undertaking should not be required (only) where it is a case governed by the EA Directive and where final judgment would be impossible to enforce and significant environmental damage would be caused and if required to provide a cross-undertaking the Claimant would probably discontinue. Save for the last, none of those conditions would be met here.
69. On the face of it while strictly I have a discretion as to whether or not to require a cross-undertaking I would see no reason not to require one from Ms Eaton in the usual way. But she is not prepared to offer any.

Other matters

70. A further important point is that construction has been going on now for about 5½ months and in September at the latest the nesting/breeding season will come to an end. It is very hard to see that the incremental difference between any disturbance to birds created already and that to take place over the next 10 weeks could be significant. That is especially important to weigh against the undoubted financial losses which will be sustained by RWE.
71. I also consider that there has been considerable delay here. If the real mischief to be avoided, prior to any substantive hearing, was disturbance due to construction, Ms Eaton surely should have brought proceedings once she knew that construction was under way as she did by 19 March. Indeed, she could have done so beforehand. On her case, even though she did not obtain the Bat Survey until this year, (a) disturbance was likely to nesting and breeding birds and (b) the likelihood of operations at the Windfarm leading to offences was clear from the ES with which she was very familiar. And RWE stated in October 2011 that it would not be applying for a licence because it was not going to be committing any offences. On any view it is hard to see why the Injunction Application was not made at least at or shortly after the commencement of construction works. It is no answer to say that Ms Eaton was awaiting NE's response to questions about a licence since that could not affect the position about the birds, who are the subject of the concerns about the construction process.

Conclusions

72. Accordingly, for all the reasons given above even if there were a serious issue to be tried, the balance of convenience lies overwhelmingly in favour of RWE and against the grant of an injunction.

PERMISSION

73. While I have had the parties' submissions on the question of permission to bring this JR claim, I reserved my position on the matter given that Ms Ring maintained that I should not decide that question, at least not finally, on the basis of this oral hearing. RWE and NE invited me to do just that. Leaving aside any question of prejudice, there are obvious reasons why I should deal with permission now, not simply on paper (where there would be a right to renew orally) but once and for all. First, at the heart of the debate before me has been whether there is any merit in the underlying JR claim at all. A finding of no serious issue to be tried must in normal circumstances entail the denial of permission for there is no properly arguable case. And it is not one of those cases where the production of any further evidence could be said reasonably to make a difference (see below). In addition of course, the parties have already submitted evidence going to the merits of the claim. In those circumstances the notion that I should refuse the injunction on the grounds set out above and then leave the question of permission to be decided hereafter makes little sense, would be disproportionate in terms of the time and costs of all the parties and would not be furthering the overriding objective. It is true that by dealing with permission finally at this stage, I would have cut out the initial paper stage so that Ms Eaton has had only one and not two potential bites at the cherry. But there are occasions where a case is called on at the outset for an oral hearing and permission is dealt with then. Further, in this case, it would be absurd for any judge other than myself to deal with the question of permission on paper (if not dealt with now) and if so I would be bound to refuse it. That would then leave a renewal hearing dealing with the same central issues that have already been argued extensively before me orally and in writing.
74. However, Ms Ring says that Ms Eaton will be prejudiced if I deal with permission finally now, because she had not come to Court to deal with permission as such. I accept for these purposes that she did not so attend but in my judgment it makes no difference. It is plain from RWE's Summary Grounds and Response to the Injunction Application, dated 20 July 2012, that its position was that the injunction should be refused, first, because there was no merit in the underlying claim. NE's Summary Grounds dated 19 July contained a very detailed rebuttal of the claim. It follows that it was obvious that on the hearing of the Injunction Application the Court would have to decide whether there was anything in the Main Claim at all. Ms Ring accepts that she was prepared to deal with that point (as her careful and detailed oral and written advocacy revealed). But in that event she was as well prepared to deal with permission since it concerned the same issue. Questions about the true nature of the claim against NE or the final relief sought, for example, are as apposite to the Injunction Application as to the Main Claim. She suggested that she should have a further opportunity to deal with permission because she wanted to adduce further evidence namely about golden plovers flying in flocks (with which I have dealt in paragraph 14 above) and also to critique further the Bat Survey. As to the latter there is equally no reason why any such critique could not have been put in much earlier indeed as part of the original claim. But more fundamentally, neither of those matters would have been of much significance in terms of avoiding the difficulties with the claim outlined above. Thus there is no real prejudice there. Finally, Ms Ring said that she would have preferred to have her chosen Counsel to assist on permission (presumably at an oral renewal or rolled-up hearing) but I do not consider that to be a good enough reason to defer the question of permission when (a) Ms Ring in fact argued the merits comprehensively and with very considerable skill and (b) the outcome would still be two hearings on exactly the same point.
75. Accordingly, and on the basis of the oral hearing before me, I also refuse permission to bring the Main Claim.

PROTECTIVE COSTS ORDER

76. Ms Eaton seeks a PCO in respect of both NE and RWE, capping her total liability at £5,000. As I have refused permission (and even if not finally I would have refused it on paper) it must follow that I refuse to make any PCO because there is no real prospect of success. See R (Corner House) v Trade and Industry Secretary [2005] 1WLR 2600 at paragraph 73 of the judgment of Lord Phillips MR. And in any event I would not have made a PCO here for the reasons set out below.
77. First, this application is governed by the usual Corner House principles and not those as modified in the case of Garner v Elmbridge Borough Council [2010] EWCA Civ 1006. That is because Garner is relevant only where there is a case involving the EIA Directive and Article 10a – see paragraphs 32 and 33 of the judgment of Sullivan LJ. As explained in paragraph 65, above this is not such a case.
78. Second, as far as RWE is concerned, I have already held that in truth this is a private law claim against it albeit presently contained within JR proceedings. A PCO should not be granted in such a case. See the Court of Appeal decision in Nadia Ewaida v British Airways [2009] EWCA Civ 1025 and paragraph 38 of the judgment of Lloyd LJ.
79. Third, I do not consider that the issues raised here are of general public importance which it is in the public interest to resolve. Indeed I have found that there is no real issue.
80. Fourth, the level of financial disclosure from Ms Eaton has been unsatisfactory. To begin with she should have filed a full schedule of anticipated costs at the outset. See paragraph 78 of Corner House. Next, it is not clear that BATTLE cannot in fact raise much more than it already has done for costs and with the CFA now in place Ms Eaton should on the face of it have monies available in respect of costs, should she lose. And it is simply not known whether there are other members of BATTLE who can in fact assist with substantially more. See paragraphs 61 and 62 above. She also has a house worth around £500,000 as already noted. Although Ms Eaton says that if the PCO is not made she will have to discontinue, it is difficult for the Court to be sure about that, given the points about her finances made above. I also note that in paragraph 10 of her first WS she raises the alternative prospect of finding a "substitute claimant" (presumably another member of BATTLE). Of course if that happened, and there was otherwise merit in the claim, any issues worth ventilating and any relief obtainable would still be considered by the Court. And on the other side, while RWE is a substantial commercial organisation it is worth noting that NE is not, and has had its own funding from central government very substantially reduced – by some 31%.
81. For all those reasons I would not have considered it fair or just to make a PCO.

CONCLUSION

82. Accordingly, I dismiss the Injunction Application and the application for a PCO, and refuse permission to bring the Main Claim. I am very grateful to all advocates for their excellent oral and written submissions (some of the latter prepared earlier by other Counsel). Following the formal handing-down of this judgment I will deal with all consequential matters on a date to be fixed.