England and Wales High Court (Administrative Court) Decisions

Area 1 - Gloucestershire

1

Severn Ham

“Resident lapwing, curlew, and redshank”

No. The opening sentence of the citation [6/4/267] describes the site as “one of the last traditionally managed ham meadows” and goes on to describe the habitat as neutral grassland. As to the omissions alleged by the Claimant, the citation does not identify these as features of special interest: it merely says: “Birds resident on the Ham include…” .

Yes.

The notification comprises more than the summary list of Notified Features. It includes the citation and also includes the list of Operations Likely to Damage the special interest (OLDs). These are activities likely to damage the SSSI and that require special consent from NE in order to ensure the special interest is protected and maintained. In this case (and in many other examples below), the OLDs extend to ecological interests which are beyond what NE regards as "special". For example, the OLDs include prohibitions on the killing or removal of species of fauna, which here includes specifically birds. Thus disturbance or other impacts on these birds are an Operation Likely to Damage the special interest.

[Blank]

3

"The precise timing of the hay cut depends on local factors, including past management and current weather conditions, but should be after ground nesting birds have fledged their young."

2

Coombe Hill Canal

“Curlew and snipe”

No. The citation [6/4/262] indicates that these features are less than special. The opening sentence of the citation is unequivocal: “This site is of special interest for its assemblages of nationally rare and scarce invertebrates and nationally scarce plants.” The features relied on by Mr Woodfield are found in the final paragraph, introduced as follows: “The site is also locally important for its diverse breeding bird assemblage”. There is a clear distinction between the “special interest” features that are “nationally rare and scarce” and the bird assemblage which is merely “locally important” .

Yes.

See the response in respect of Severn Ham, above.

[Blank]

3

"Where water voles are known to be present, the relevant good practice guidelines for ditch management and conservation should be followed".

-

"Maintaining structural diversity and a mosaic of age classes within areas of scrub is important for maintaining the diversity of species scrub is able to support. For example, hawthorn scrub supports the greatest variety of bird and insect species in early and middle stages of growth."

Area 2 - Somerset

3

Dunster Park & Heathlands

“‘Very diverse’ breeding bird assemblage”

No. The ‘reasons for notification’ section [6/4/273] rules out the breeding birds being regarded as of special interest in their own right. It says: “This site is notified for nationally important lowland dry heath, dry lowland acid grassland, wood-pasture with veteran trees and ancient semi-natural oak woodland habitats. The fauna of the lowland heath includes a nationally rare butterfly the heath fritillary Mellicta athalia. The assemblage of beetles associated with the veteran trees is of national significance.” The citation is clear on this point and leaves no doubt as to the features of special interest. The assemblage of breeding birds referred to by the Claimant appears for the first time in the final paragraph of the citation. These bird species are not mentioned at all under the “Reasons for Notification” heading.

Yes.

See the response to Severn Ham above. So far as NE rely on the use of superlatives elsehwere to distinguish between "special" and "less than special" interests (a distinction which is not accepted), the phrase here is a "very diverse breeding bird assemblage" which would appear to be consistent with a feature of special interest by that measure. The citation refers to protected status of nightjar and Dartford warbler.

[Blank]

3

"To avoid disturbance to breeding birds the work (thinning or coppicing) is normally best done between the beginning of August and the end of February.                                                                     Heathland supports the greatest diversity of plants and animals (including diverse invertebrate fauna and a number of characteristic bird species) where management maintains the open nature of the heath, and promotes a varied structure of un-even aged stands of native heather and other characteristic plants.                                                                                        The maintenance of scattered mature Scots pine in undisturbed locations will provide suitable nest sites for hobbies .                                         Scattered gorse stands with a bushy structure rather than large continuous blocks are of greater benefit to the characteristic bird and invertebrate species associated with gorse scrub. For example, Dartford warbler require areas of open heath (with less than 25 trees per hectare) with over 50% cover of mature heather (preferably over 30 cm tall) and patches of dense, compact, mature gorse bushes (0.5-3 m tall) to be maintained ."

Area 11 - Cheshire

4

Bagmere SSSI

(Midland Meres & Mosses - Phase 1 Ramsar)

“The overarching Ramsar designation is cited for bird interests, albeit these are not mentioned in Bagmere SSSI citation and are mainly focused elsewhere (e.g. Rostherne)"

No. The citation [6/4/63] does not contain any reference to bird interests.

The Claimant’s reliance on the Ramsar designation to try to introduce “bird interests” is premised on a misunderstanding. The SSSI is included in the Midland Meres and Mosses (Phase 1) Ramsar site, which is not designated for avian species.

Yes.

Bagmere SSSI is included in the Ramsar Site because of its bird interest. The site is therefore of international importance for these interests. Further the SSSI matrix identifies a 'low' risk from carnivore release which must relate to bird interests. 

[Blank]

2

The proportion of trees and scrub present across the basin fen should be carefully evaluated and in most cases restricted to a few small scattered stands for the benefit of the birds and invertebrates.

-

Grazing usually takes place at times between late spring and early autumn, but the precise timing and intensity will depend on local conditions and requirements, such as the need to avoid trampling ground-nesting birds.

Area 14 –

Devon

5

Nymet Barton Marsh

“Marsh fritillary”

No. The citation [6/4/93] indicates that this feature is less than special. It says: “The fauna of the site is poorly known, although the nationally scarce and declining marsh fritillary butterfly Euphydryas aurinea has been recorded.”

No. The mitigation measures included restricting vehicles to existing tracks and limiting the location of traps to existing sett footprint [5/2/179] . These are sufficient to protect this butterfly species.

The species features in the citation and is of special interest. Compare White Horse Hill where "populations of nationally declining adonis blue" are a Notification Feature and also Black Hill Down where "populations of nationally declining marsh fritillary" are a notification feature.

[Blank]

3

Traditional methods of management have produced a species rich sward that supports a rich variety of flowering plants, invertebrates and birds.

6

Gilmoor and Moorlands

“Woodlark and tree pipit and 28 butterfly species”

No. The introductory paragraph of the citation [6/4/89] indicates that the scope of the special interest is botanical: “This site comprises an area of unimproved herb-rich acidic grassland of a restricted community type, together with scrub and woodland; it is of importance for its high botanical interest.”

This language is to be contrasted with the language used to describe the species identified by the Claimant. Tree pipit and woodlark are merely described as having “recently bred in the grassland areas” , which are also said to “ provide a hunting ground for barn owls ”.  Similarly, with respect to butterflies, the citation refers to “ good populations ” of these “ uncommon and declining ” species. This is distinct from the terms “ it is of importance ” and “ high interest ” used to describe the botanical special interest features.

Yes.

The recognition that the species concerned "add value" indicates that they form part of the special interest. Marsh fritillary is a signpost species of the health of the cited habitats. A site with an assemblage of 28 butterfly species (circa half the British species) could qualify for SSSI designation on that basis alone. That is unarguably 'special' and the OLDs for the site prohibit removal or killing of fauna.

[Blank]

3a

An element of managed scrub, both within and fringing a field, is of great importance to the characteristic birds and invertebrates of Culm Grassland.

-

The rare Marsh Fritillary Butterfly is found on the majority of Culm Grassland sites and the management described above is also beneficial to ensure their continued existence on this site.

7

Okehampton Park Flush

“Invertebrate fauna”

No. The citation [6/4/94] indicates that the feature is less than special. The final paragraph states: “The invertebrate fauna of the site is not well known…” . It is the habitat which is the feature of special interest as opposed to the invertebrate fauna in their own right.

The site is not on participating land (NE letter 5.10.18 §§2, 4.1(c) [Annex/4] ) so there can be no risk to these species.

In any event, the identified mitigation measures were to “Exclude SSSI or restrict vehicles to existing tracks” [5/2/179] . These are sufficient to protect the invertebrate fauna referred to in the citation.

This suggests that uncommon plant species of the cited habitats do not merit protection as being "special", but the habitats do. This exposes an absence of logic in NE's approach of seeking to distinguish between special and less than special features within a citation. 

[Blank]

3

[Blank]

Area 15 - Devon

8

Froward Point

“Breeding birds”

No. The opening paragraph of the citation [6/4/109] is clear on the scope of the special interest: “This site is important for its coastal plant communities and in particular for the maritime heathland and grassland which support several local and rare species.”   The “local and rare species” are then covered in the paragraphs that follow. All are plant species.

Yes.

As with the sites above, these are cited features forming part of the special interest and reflected in the OLDs. NE do not answer the inconsistency point - i.e. why have breeding birds been assessed at Lemon Valley Woods SSSI despite lesser prominence in the citation.

[Blank]

3

Maritime grassland and heathland supports the greatest diversity of plants and animals (including a diverse invertebrate fauna and a number of characteristic bird species )

-

Free roaming livestock can suppress scrub encroachment and provide some light poaching to create small pockets of bare peat and sandy ground that are of benefit to a variety of specialised plants, invertebrates and reptiles.

9

Berry Head to Sharkham Point

(South Hams SAC)

“Only guillemot colony at Berry Head assessed (no other bird interests). No assessment of potential for impacts on bats at Berry Head (where they are a supporting feature to overarching SAC designation)."

No. The citation [6/4/104] contains a very clear summary: “This site is important for its extensive area of limestone grassland containing many nationally rare plants and for its important assemblages of lichens. Also, the sea cliffs support the largest Guillemot colony to be found along the south coast of England. In addition, important geological features are to be found at Shoalstone Beach.” This excludes the features cited by Mr Woodfield.

Furthermore, the citation does not say whether bats are breeding or roosting (which would ordinarily be expected from a description of a feature of special interest): it merely says “inhabited by” .

There is also a strong contrast between the ‘feeble’ description ( “regularly nesting” ) used for some of the seabirds mentioned and the robust description of the guillemot as the “only stable breeding colony on the south coast” (the guillemot is a feature of special interest which was assessed by Natural England).

No. The entire site was excluded from any licensed activity by the mitigation measures identified for the bat and bird species that were assessed: see [2/3/377] , [5/2/180] and NE letter 5.10.18 §4.1(a) [Annex/4] .

NE's response suggests an approach that disregards features felt worthy of mention in the original citation purely on grounds of absence of current detail about them. NE do not respond to the omitted bats point. Note also the SAC designation which applies to the site.

[Blank]

2 & 3

It is important to retain the current extent and condition of the habitat whilst allowing natural coastal processes to operate along the length of the rocky coast. The cliffs should remain as steep slopes with many patches of bare rock. Natural erosion is vital to maintain this, and as such, cliffs should not be deliberately stabilised. If this occurs it will result in the bare ground and pioneer vegetation becoming progressively overgrown, creating a much less suitable nesting habitat. Similarly, other developments which may indirectly increase erosion rates and cause habitat loss, including building at the cliff top, should be prevented. The importance of grasslands at the cliff top should not be overlooked, as these provide the starting point for the cliff plant communities. They should certainly not be converted to other habitat types, and should remain grazed to prevent scrub encroachment of the cliffs below.

-

Seabird colonies attract large numbers of visitors during the breeding season, and whilst this should not be discouraged, it is important that access is managed appropriately so that the birds, and indeed the cliffs themselves, are not unduly disturbed.

-

An element of managed scrub, both within and fringing calcareous grassland can be of great importance to certain birds and invertebrates, but excessive scrub should be controlled.

-

The maintenance of scattered mature Scots pine in undisturbed locations will provide suitable nest sites for hobbies .

-

It is important to avoid disturbance to the bats while they are at the maternity roost. Entrances to the site should be secure to prevent uncontrolled or unauthorised access during the breeding season, but should remain unobstructed enough to continue to be accessible to bats. Activities of any kind within the site or close to the entrances should be largely avoided during this period each year to minimise the risk of disturbance to the breeding bats. Building or engineering works taking place within or around the area should be avoided, as should the use of vehicles or machinery that would be likely to produce noise, fumes or heat near roosting sites or access points that may disturb breeding bats.

-

Maintaining hedgerows, uncultivated field margins and extensively managed pasture near the roosting site will also provide appropriate commuting routes and foraging areas to support the bat population.

10

Torbryan Caves

“bats”

No. There is a clear contrast in the language used in the citation [6/4/114] regarding the geological features of special interest on the one hand (namely “a series of caves… that are of importance” and “Equally significant is the occurrence of the remains of… fossils” ) and bats on the other hand (it states: “The caves are also used by several species of bat ”). The wording does not suggest that bats were regarded as special when the site was notified.

This is underlined by the notified list of operations, which makes no reference to the operations which were (at the time of notification) obligatory for any bat SSSI notification, so the bats were clearly not regarded as special in themselves.

There is no “inconsistency with… Caen Valley” as alleged by the Claimant. The citation for the Caen Valley Bats SSSI leaves no room for doubt that greater horseshoe bats (both breeding and hibernating) are of special interest at that site. Under the heading “Reasons for Notification” it states: “The site is notified as a nationally important summer maternity roost and winter hibernacula for the greater horseshoe bat” . This contrasts markedly with the wording used to mention bats in the citation for Torbryan Caves SSSI.

Yes.

The bats are identified in the citation.  The approach NE advocate is to assess for effects based on a fixed historical point without any recognition of changing or current interest features. The inconsistency with the assessment approach at Caen Valley is not answered or explained. Notwithstanding the omission of any mention of bats in the OLDs list, the VAM document sets out measures to protect the bat interests.

[Blank]

3

The caves support hibernating Greater Horseshoe, Lesser Horseshoe and Long-eared bats that require a range of environmental conditions within the hibernation site as different species have different temperature requirements, which vary through the winter. The internal conditions within the hibernation site should remain consistently cool and dark away from the entrances with stable ventilation. Emergence points and flight lines should be maintained as unobstructed and free from artificial light, though vegetated cover around the entrance is desirable.

-

It is important to avoid disturbance to the bats while they are hibernating. Entrances to the site should be secure to prevent uncontrolled or unauthorised access during the winter months in particular, but should remain unobstructed enough to continue to be accessible to bats. Activities of any kind within the site should be largely avoided during the general period of September – April each year to minimise the risk of disturbance to bats during the sensitive period of hibernation. Building or engineering works taking place within or around the area should be avoided, as should the use of vehicles or machinery that would be likely to produce noise, fumes or heat near roosting sites or access points that may disturb hibernating bats.*

-

The maintenance of some woodland and scrub cover in the vicinity of the hibernation site will provide sheltered and secured access to commuting routes as well as valuable feeding habitat for the bats. This will be important in the spring following hibernation when emerging bats will need to build fat reserves prior to the breeding season. Maintaining hedgerows, uncultivated field margins and extensively managed pasture near the roosting site will also provide appropriate commuting routes and foraging areas to support the bat population.

Area 16 – Dorset

11

Bere Stream

“kingfisher and otter ”

No. The citation [6/4/117] says “A length of chalk-stream with marshland and woodland. The Bere stream is a very typical permanent chalk-stream which has been maintained almost without management in recent years. The adjacent woodland and grassland have a rich flora and fauna . ”

The species identified by Mr Woodfield are referred to only in loose terms: “Kingfisher… occurs and Otter… is regularly recorded” .

Yes.

As above with sites above. OLDs include 'killing or removal of fauna', including birds and mammals. 

[Blank]

3

The rivers natural structure and form should be maintained. This will ensure the provision of resting pools for fish, conserve the quality of the riverbed as fish spawning habitat, and avoid the creation of artificial barriers to the passage of migratory fish and other animals, such as otters.                                                                 Bank-side vegetation should be allowed to develop, allowing characteristic plants to flourish as well as benefitting those animals that spent part of their life-cycle out of the water.                                                                                             It may be beneficial to consider re-instating traditional swamp management practices where they are not in conflict with other nature conservation objectives, such as the specific requirements of certain birds or invertebrates.                                                              Grazing usually takes place at times between late spring and early autumn, but the precise timing and intensity will depend on local conditions and requirements, such as the need to avoid trampling ground-nesting birds.             An element of managed scrub, both within and fringing marshy grassland can be of importance to the birds and invertebrates, as can a surrounding hedge.                                                             To avoid disturbance to breeding birds the work (thinning or coppicing) is normally best done between the beginning of August and the end of February.

12

Black Hill Down

(Cerne & Sydling Downs SAC)

“five other butterfly species”

[6/4/119]

It is arguable that the brown argus and chalkhill blue species of butterfly are of special interest.  However, given the mitigation measures, the issue is academic.

No.

The mitigation measures for this SSSI included: ‘Restrict vehicles to existing tracks. Limit location of traps to existing footprint or areas of scrub” (which were imposed to protect the grassland interest feature [5/2/194] ). This is sufficient to protect the allegedly omitted butterfly species.

NE uncertainty over interpretation of citation to be noted. Suggests by reference to the exclusion of these species from the matrices that the defailt position when the screening assessments were done in 2017 was 'if in doubt, exclude'.

For this 'no difference' claim to have traction, those responsible for implementing the mitigation measures must be assumed to have sufficient specialist entomological expertise to identify brown argus and chalkhill blue colonies as distinct from marsh fritillary colonies. Note that it is not clear whcih of the alternative mitigation measures was implemented. In any event a failure of assessment.

1, 4

Mixed scrub provides an excellent source of food (nectar, fruit and berries) that supports a range of invertebrate and bird species. The greatest variety of invertebrates and birds are supported by the early and middle stages of scrub growth.

-

Patches of bare sandy ground, especially within heather vegetation and associated with banks or other topographic features, are important for reptiles.                                                                            Streams and ponds considerably add to the heathland interest in providing habitat for specialised plants, amphibians and invertebrates such as dragonflies.

13

Black Hill Heath

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC)

“hobby”

[6/4/120]

Hobby was not separately assessed as a feature of special interest but given the mitigation measures, the issue is academic.

No. The mitigation measures already include “Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September…” [5/2/181] .

These were judged sufficient to protect nightjar and Dartford warbler in the Dorset Heathlands HRA process [2/3/415, 418] and in the SSSI matrix [5/2/181] . No additional measures would be required to protect hobby.

NE uncertainty over interpretation of citation to be noted. Suggests by reference to the exclusion of this species from the matrices was that the default position in 2017 was to exclude features of assessment even in cases of doubt.

There is arguably some basis for the no difference argument in this specific case. However it is not clear which mitigation measure was employed.

1 & 4

Free roaming livestock can suppress scrub encroachment and provide some light poaching to create small pockets of bare peat and sandy ground that are of benefit to a variety of specialised plants, invertebrates and reptiles.

14

Blackmore Vale Commons and Moors

(Rooksmoor SAC)

“nightingale”

No. The “ Reasons for notification” [6/4/121] do not include nightingale, i.e. it is clearly not a special feature.

The language used in the “Reasons for notification” section is a good example of language that identifies features of special interest. It states that the site is “of special interest by reason of the following nationally important features…” . By contrast, when referring to nightingale in the third paragraph from the end of the “General description” section of the citation [6/4/124] , the site is described as the “Dorset stronghold of the nightingale” . This local significance of the site is different from the express indication that the site is nationally significant for the features identified in the “Reasons for notification” section.

Yes.

The area is a county stronghold for the species concerned, supporting the view that they form part of the special interest. The OLDs include "Killing, injuring, taking or removal of any wild animal (including dead animals or parts  thereof), or their eggs and nests, including pest control and disturbing them in their  places of shelter" . None of the "Notified Features" relied upon by NE as constituting the special interest have nests. Compare with how OLDs are used in NE's defence at Toryban Caves above. No response to the inconsistency point.

[Blank]

3

Encouraging structural diversity and a mosaic of age classes within areas of scrub is important in maintaining the diversity of species. For example, blackthorn scrub supports the greatest variety of bird and insect species in early and middle stages of growth.                                                         Cutting late, such as in February, will be least damaging to wildlife in general. However, where hedges are known to be of particular importance for brown hairstreak they should ideally be cut in late July/early August, before eggs have been laid (care will be needed to avoid any birds that have not yet fledged).

15

Blue Pool and Norden Heaths

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC)

“small red damselfly, bog bush-cricket and the butterfly silver-studded blue”

[6/4/125]

These were not individually assessed as features of special interest in the SSSI matrix but given the mitigation measures, the issue is academic.

No. The mitigation measures included: “restrict vehicles to existing tracks… Digging in should be limited to the area of existing setts or large areas of scrub… Avoid placing traps alongside watercourses or within mires… Avoid digging in areas of habitat suitable for sand lizard egg laying (open sand) between May and October… Avoid digging in areas of habitat suitable for smooth snake hibernation between November and March ” [5/2/191-2]. These measures were to protect a range of heathland, woodland and aquatic habitats, rare plant species, insects and herpetological features. They secure adequate protection for the species identified by the Claimant.

NE acceptance of omission noted.

Arguably, the no difference point has some traction here, although it is noted that the mitigation measures read as guidelines (e.g. "avoid") rather than complete prohibitions (such as "do not"). Risk may not be entirely avoided. In any event a failure of assessment.

1 & 4

"many of the specialised animals are dependent on both aquatic and adjacent terrestrial habitats and it is important that both are considered together" and "pathces of bare sandy ground especially within heather vegetation... Are important for reptiles and many specialised heathland invertebrates"

16

Brenscombe Heath

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC)

“Dartford warbler”

The mitigation measures applicable to this site included “Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September” [2/3/412, 418] .

The Habitats Regulations process for Dorset Heathlands SPA (which this SSSI is part of) judged that these measures were adequate to protect the Dartford warbler (which is one of the SPA species) [2/3/415, 418] .

The matter was further addressed at Heydon 1 §§58 to 71, Heydon 2 §§37, 43 and 52, and Drewitt 1 §§13-19 and 25. The Court held that Natural England’s approach was rational.

De facto acceptance of omission noted.

This does not answer the question in the first instance as to whether a separate SSSI assessment should have been carried out. Furthermore, the HRA restrictions cited (2/3/418) are "restrict shooting activities to outside the bird breeding season - i./e. no activities til 1st Sept and avoid shooting between 1st Sep and 30 April in areas of intertidal, fen, reedbed and grazing marsh habitats". As set out in the HRA claim, these restrictions do nothing to protect wintering Dartford warblers using heathland habitats. The mitigation measures are therefore inadequate to address the omission.

1, 2, & 4

Controlled winter burning "special care is required when some sensitive species are present"

17

Corfe Meadows

“invertebrate fauna”

No.

The opening paragraph of the citation [6/4/130] summarises the interest as the habitat and its flora. The bulk of the citation expands upon these.

The reference to invertebrate fauna is in the final paragraph [6/4/131] : “The fauna is known to contain a rich assemblage of commoner invertebrates ”. These are found in the “small block of wet woodland, in the hedgerows and along the banks of the Corfe River” (mentioned in the penultimate paragraph), which is itself not identified as part of the special interest.

The description of the invertebrates as an assemblage of commoner species, with the most significant status being given to two local beetles, is not indicative of a special feature.

No. The identified mitigation measures were: “Exclude SSSI or restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or areas of scrub” [5/2/194] . These are sufficient to protect the alleged invertebrate interest.

See overarching comments above re special versus 'less than special'. OLDs which prohibit killing or removal of fauna contradict this defence that invertebrates on the site are 'not special' and therefore expendable.

[Blank]

3

"Any surrounding well managed hedgerows may considerably add to the habitat in providing shelter for invertebrates"

18

Court Farm, Sydling

(Cerne & Sydling Downs SAC)

Matrix includes "only marsh fritillary and not the other cited 'scarce and declining species of butterfly"

These further butterfly species were not individually assessed but given the mitigation measures, the issue is academic.

No. The mitigation measures identified for this site included: “Restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or areas of scrub” [5/2/195] . These are sufficient to protect the butterfly species relied on by the Claimant.

NE acceptance of omission noted.

Small blue likely to use scrub and scrub interface so the 'no difference' point cannot stand as the mitigation measures do not address potential impacts on this species. In any event, for a 'no difference' argument to work, those responsible for implementing the mitigation measures must be assumed to have sufficient specialist entomological expertise to identify small blue and chalkhill blue colonies as distinct from marsh fritllary colonies.

1, 2, & 4

"In order to maintain a species-rich sward and its associated insects and other invertebrates"; "certain insects can benefit from the presence of taller vegetation"; "an element of managed scrub, both within and fringing chalk grassland, can be of great importance to certain birds and invertebrates"

19

Creech Grange

"unclear why only spring and autumn use by greater horseshoe [bat] mentioned in matrix, not nursery (summer) use by other [bat] species including rare grey long-eared"

No. The citation [6/4/134] is clear in the first two paragraphs that the special interest of the site is the maternity colony of greater horseshoe bats.

The reference to other bats in the final paragraph does not indicate what most of those species are or in what way they use the site: it merely says “Seven other species of bats, including the local grey long-eared bat, are also known to use the roof spaces of the outhouses and the main buildings, in several cases as a nursery roost.” This is additional context and not part of the special interest.

No. Mr Woodfield’s statement particularises “nursery (summer) use” by additional bat species, but this is already covered by the existing mitigation measure, namely “Exclude SSSI from 1st May to 30th September” [5/2/190] .

In any event, the debate is academic: the SSSI is only 0.1ha in size and essentially protects buildings (viz. the loft space above some stables/outhouses). Cull operators would never enter those buildings or fire shots next to them.

Grey long-eared is one of Britain's rarest bat species (rarer than greater horseshoe) and nursery colonies are rarer still. The species is clearly part of the special interest.

It has different habitat requirements to GH bats so would require different considerations, so a "no difference" argument cannot be run.

3a

Long section on "mixed assemblage of bats" (i.e. Not just GHB) and reference to both maternity and winter roosts.

20

East Coppice

“scarce invertebrates including fritillary butterflies … nightingale”

As to “Nightingale” , the citation [6/4/135] indicates that this is not a feature of special interest: it merely says that “The birds of this site are typical of coppice woodland and include Nightingale, a scarce breeding species in Dorset.” This contrasts with the terms used to describe the woodland habitats of special interest including “… a rare example of ancient woodland which has been continuously managed as coppice to the present day ” and “ The ground flora of this wood…very rich, and include some rarities, reflecting this continuity of management .”

Scarce invertebrates were not separately assessed but given the mitigation measures, the issue is academic.

No, as regards “scarce invertebrates” : the mitigation measures applicable to this SSSI included: “…restrict vehicles to existing tracks. Limit location of traps to existing sett footprint” [5/2/182] .

Yes, as regards nightingale.

The scarce breeding species is part of the special interest, particularly where it is a signpost to the quality of the notified habitats

Unclear which mitigation measure deployed.

1, 3 & 4

VAM refers to measures to avoid disturbance to breeding birds.

21

Hartland Moor

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC)

[ “small red eyed damselfly” ] [2]

The small red eyed damselfly ( Erythromma viridulum ) is not mentioned in the SSSI citation. 

The special interest of the SSSI includes an invertebrate assemblage. This assemblage encompasses the heathland dragonflies to which the citation refers and was assessed [5/2/192] . 

The mitigation measures already include: “Restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or large areas of scrub…. Avoid placing traps alongside watercourses or within fens and mires in units 3, 10 and 11… Avoid locating traps within areas of bog or mire… Avoid digging in areas of habitat suitable for sand lizard egg laying (open sand) between May and October and habitat suitable for hibernation between November and March. Avoid digging in areas of habitat suitable for smooth snake hibernation between November and March” [5/2/192-3] . These are sufficient to address the “small red eyed damselfly” .

22

Higher Houghton

“downland butterflies”

No. The opening paragraph of the citation [6/4/139] is all about grassland, scrub and woodland habitats, all of which are expanded upon in detail in subsequent paragraphs.

The reference to down-land butterflies is found in the final paragraph. It merely says “typical down-land butterflies including the local Chalkhill Blue ”. This wording is in contrast to the stronger wording used for other features, e.g. “chalk grassland and scrub communities are particularly rich and well developed and provide excellent examples of types found in east-central Dorset. ” The final paragraph is a brief summary of the characteristic fauna typically associated with such a diversity of special habitats, with the butterflies presented as examples of that.

No. The mitigation measures that applied to this SSSI included: “Exclude SSSI or restrict vehicles to existing tracks. Limit location of traps to within the sett footprint or areas of scrub… or conifer plantation” [5/2/182] .

This is sufficient to avoid damage to “downland butterflies” .

See overarching comments. OLDs suggest interest not restricted to habitats alone: "the killing or removal of any wild animal  - including invertebrates"

[Blank]

3

"In order to maintain a species-rich sward and its associated insects and other invertebrates"; "certain insects can benefit from the presence of taller vegetation"; "an element of managed scrub, both within and fringing chalk grassland, can be of great importance to certain birds and invertebrates". Invertebrates also mentioned in context of hedgerows and broad-leaved woodland.

23

Holton and Sandford Heaths

(Dorset Heathlands SPA; Poole Harbour SPA; Dorset Heathlands Ramsar; Poole Harbour Ramsar; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC; Dorset Heaths SAC)

“Dartford warbler, nightjar, woodlark and also Cetti’s warbler ”

This site is part of Dorset Heathlands SPA and Poole Harbour SPA so the applicable mitigation measures included: “Restrict vehicles to existing tracks… Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September…. Avoid shooting between 1st September and 30 April in areas of intertidal, fen, reedbed and grazing marsh habitats…” [2/3/418, 465] .

The Habitats Regulations process for Dorset Heathlands SPA (which this SSSI is part of) judged that these measures were adequate to protect Dartford warbler, nightjar, and woodlark (which are SPA species) [2/3/415, 418] .

The matter was further addressed at Heydon 1 §§58 to 71, Heydon 2 §§37, 43 and 52, and Drewitt 1 §§13-19 and 25. The Court held that Natural England’s approach was rational.

No different considerations arise for Cetti’s warbler (which is, in any event, not arguably a feature of special interest given that it is only referred to in the citation [6/4/143] under the term “associated scrub support several pairs…” ).

This does not answer the question in the first instance as to whether a separate SSSI assessment for these species should have been carried out. Furthermore, the HRA restrictions cited (2/3/418) are "restrict shooting activities to outside the bird breeding season - i./e. no activities til 1st Sept and avoid shooting between 1st Sep and 30 April in areas of intertidal, fen, reedbed and grazing marsh habitats". These restrictions do nothing to protect wintering Dartford warblers or woodlark using heathland habitats.

1, 2, 3 & 4

Heathland birds frequently mentioned in VAM.

24

Lulworth Park and Lake

“breeding wetland birds or wildfowl especially pochard”

Yes [6/4/144] .

A mitigation measures has already been imposed to address these interest features, namely: “No shooting activities or access to within 200m of the lakes all year round” (notified to the Claimant on 19 September 2018 [Annex/1] ).

NE acceptance of omission noted.

Ex post facto assessment. The no difference point cannot be claimed as it would have been unnecessary to impose retrospective restriction. In any event, this restriction will have been imposed too late to come into effect, and there has been a failure of assessment.

1 & 4

NE acceptance of omission noted. VAM underlines that breding wetland birds and wildfowl part of the special interest but only via generic statements - i.e. No special treatment

25

Lyscombe and Highdon

“typical chalk downland butterflies including local Chalkhill Blue”

No. In the citation [6/4/145] there is a contrast between the stronger description of the flora (described as an “important example” ) and the weaker description of the fauna (described as “abundant and varied” ). The opening paragraph is about chalk downland habitats (with an emphasis on the flora), which are expanded upon in detail in subsequent paragraphs. The final paragraph is best interpreted as a brief summary of the characteristic fauna typically associated with such a diversity of chalk downland habitats, with the butterflies presented as examples of that.

The mitigation measures for this SSSI were to: “Restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or areas of scrub” [5/2/188-9] .

This is sufficient to avoid damage to “chalk downland butterflies” .

See overarching comments. OLDs suggest interest not restricted to habitats alone: "the killing or removal of any wild animal  - including invertebrates". A "rare" spider is mentioned in the citation, but NE pass no comment on that. 

[Blank]

3

Invertebrates mentioned in context of not just grassland but also scrub and woodland habitats

26

Morden Bog and Hyde Heath

(Dorset Heathlands SPA; Poole Harbour Ramsar; Dorset Heathlands Ramsar; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC Dorset Heaths SAC)

“breeding hobby or for shelduck or snipe”

No. The third paragraph of the citation description [6/4/147-8] summarises the species interests of the site and refers specifically to “international importance” for birds. The final paragraph then describes three species (nightjar, woodlark and Dartford warbler) as being “present in nationally significant numbers ” within this SSSI and contributing to the internationally important populations of the wider Dorset Heathlands. There is therefore a clear thread running from the introductory paragraphs summarising the special interest, to these three species described in the final paragraph.

Such a link or relationship is not evident for hobby, shelduck or snipe (which are described in the final paragraph merely on the basis that the site “supports” or that it “forms part of a breeding territory” of these birds). These species are therefore best interpreted as providing additional context and not being of special interest in their own right.

This site is part of Dorset Heathlands SPA, Dorset Heathlands Ramsar, and Poole Harbour Ramsar. Between the SSSI assessment and HRAs, the following mitigation measures were identified as applicable to this SSSI: “Restrict vehicles to existing tracks… Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September…. Avoid shooting between 1st September and 30 April in areas of intertidal, fen, reedbed and grazing marsh habitats….” [5/2/189] [2/3/408, 418, 465] .

These measures were judged sufficient to protect a range of habitats and bird species, namely breeding populations of Dartford Warbler, Nightjar, Woodlark, Common Tern, and Mediterranean Gull and non-breeding Hen Harrier, Merlin , Avocet, Black-tailed godwit, and Shelduck.

They would plainly have been considered adequate to also protect hobby and snipe.

Notable that NE reliance on the description relating to nightjar, woodlark and Dartford warbler as being “present in nationally significant numbers” within this SSSI and contributing to the internationally important populations of the wider Dorset Heathlands. That is exactly the position that applies at (e.g.) Holton Heath. This is because to be incorporated within the SPA all component SSSI would have to have achieved nationally important numbers in isolation. NE appear to have overlooked that issue here.

NE also say "There is therefore a clear thread running from the introductory paragraphs summarising the special interest, to these three species described in the final paragraph". That suggests they place weight on a sequence of importance as one reads through the citation. But that is not consistently followed or applied in their assessments. See the comments made in the orioginal DW16 and replicated in this table about about (e.g.) Lemon Valley Woods.  No consistency. Is it the NE position that they have erred when they HAVE assessed species mentioned in the final paras of a citation?

[Blank]

1, 2, 3 & 4

Comments re leaving scattered trees (although hobby not specifically mentioned) and also mention of need to avoid trampling ground nesting birds in pasture and wet grassland (e.g. Snipe)

27

Oakers Wood

“ Wood Warbler, White Admiral, Silver Washed Fritillary, Pearl Bordered Fritillary or Small Pearl Bordered Fritillary”

No. The opening paragraph of the citation [6/4/151] indicates that it is the flora (not the fauna) which are the features of special interest of this site: “…the flora of Oakers Wood has many elements typical of ancient woodland including some uncommon species. It also has a rich fauna.” The uncommon species of flora are then highlighted in the later paragraphs as a lichen assemblage (including rare species) and a rare vascular plant.  These are described as being “especially important” and “of particular interest” . 

Conversely, the fauna (four butterflies and wood warbler), mentioned in the final paragraph, are not described in terms suggesting particular importance or interest, just that they are strong populations or otherwise uncommon in Dorset. As such, these are examples of the “rich fauna” indicative of the value of the woodland habitat, rather than of special interest in their own right.

No, in respect of butterflies. The mitigation measures included: “Exclude SSSI or restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or areas of rhododendron” [5/2/182] . This is sufficient to avoid damage to these butterfly populations.

Yes, in respect of wood warbler.

See above responses on distinctions between special/not special and how these compare with the OLDs etc. The listed butterfly assemblage would probably qualify the site for SSSI status on that alone in 2018. NE's position seems to be that if it has lost past interest but gained new 'special' interest, that would be immaterial. Additionally, the OLDs for this site include killing or removing any wild animnal, including invertebrates, including for pest control purposes.

[Blank]

3a

"Open spaces [in woodland], either temporary gaps created by felling or coppicing or more permanent areas such as rides and glades, benefit other roups of invertebrates such as butterflies"; and "where there is open space interest (e.g. Rich butterfly populations) adjacent oplots may be worked to encourage the spread of species that are only weakly mobile." Also "to avoid disturbance to breeding birds the work is normally best done between the beginning of August and the end of February"

28

Piddles Wood

“breeding Nightingale… Wood White butterfly”

No. The great majority of the citation [6/4/153] is given over to describing the floristic composition of the woodland habitats of special interest.

Nightingale is referred to only as “local in Dorset”. That is clearly not a description of national or special importance.

Whilst the communities of animals and the insect fauna are described as being “rich” , they are also said to be “typical of oak woodland in Dorset” , “typical woodland butterflies” and “commoner woodland birds” . These all indicate species which are being presented as adding value to the woodland habitat but not of special interest in their own right.

No, in respect of Wood White butterfly. Mitigation measures included: “Exclude SSSI or restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or areas of rhododendron” [5/2/182] . This is sufficient to avoid damage to this butterfly species.

Yes, in respect of Nightingale.

The implication of the last sentence is that elements of 'added value' to a SSSI, including now rare and rapidly declining species such as wood white butterfly, are expendable and not worthy of engagement with the statutory asssessment duties unless they appear on the on-line derived 'notified features' summary list. The approach that treats SSSI interests as if a static entity and their condition measured against a fixed point in time that may be several decades ago. Thus, a rare butterfly listed in the citation and that has declined to a point of high conservation concern in the years since this SSSI was designated does not in the eyes of NE merit protection.

[Blank]

3a

"Open spaces [in woodland], either temporary gaps created by felling or coppicing or more permanent areas such as rides and glades, benefit other roups of invertebrates such as butterflies"; and "where there is open space interest (e.g. Rich butterfly populations) adjacent oplots may be worked to encourage the spread of species that are only weakly mobile." Also "to avoid disturbance to breeding birds the work is normally best done between the beginning of August and the end of February"

29

Poole Harbour

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Poole Harbour SPA; Poole Harbour Ramsar; Dorset Heaths SAC)

“nesting birds such as bearded tit”

The SSSI assessment already includes “Assemblages of breeding birds - Lowland open waters and their margins” and ‘Assemblage of breeding birds – sand dunes and saltmarshes’ [5/2/199] . These species have therefore already been assessed and appropriate mitigation measures proposed, namely “Exclude SSSI or restrict shooting activities to outside the bird breeding season (so no activities until the 1 ^st September)” [5/2/199] .

Mitigation measures only suggest avoidance of breeding bird season and of winter shooting in reedbed habitats. Unclear what was adopted.

1, 2, & 4

Mitigation measures only suggest avoidance of breeding bird season and of winter shooting in reedbed habitats. Unclear what was adopted.

30

Povington & Grange Heaths

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC)

“Hobby and Nightingale”

The bird species of special interest at this site are the Dartford warbler (described in the citation [6/4/157] as “an important site for the rare Dartford warbler” ) and nightingale (the citation explains that “The thorn scrub holds one of the most important breeding populations of Nightingale” ).

Nightjar and hobby are not features of special interest: they are introduced by the phrase “other restricted heathland birds include…” .

The SSSI matrix referred to Dartford warbler and nightjar [5/2/187] (the latter being an error, in that nightingale should have been included instead). The error makes no difference because appropriate measures were identified by the assessors for breeding birds.

No. The mitigation measures identified for this SSSI included: “restrict shooting activities to outside the bird breeding season (so no activities until the 1 ^st September)” [5/2/187] [2/3/418] and “Vehicle movement restricted to existing tracks” [2/3/408] .

These are sufficient to address the alleged omissions.

As to the Claimant’s argument that these measures “Provides no protection to wintering Dartford warblers using heathland in winter” : (1) this does not relate to an alleged omission – Dartford Warblers were assessed in both the SSSI matrix [5/2/187] and as part of the Habitats Regulations process for Dorset Heathlands SPA (which this SSSI is part of) [2/3/415, 418] ; (2) the Claimant is wrong to allege risk of harm to this population, for the reasons addressed at Heydon 1 §§58 to 71, Heydon 2 §§37, 43 and 52, and Drewitt 1 §§13-19 and 25; and (3) the Court has already held that Natural England’s approach was rational.

Note that NE accept omission error

Provides no protection to wintering Dartford warblers using heathland in winter.

-

"An element of native self-established deciduous woodland fringing the heathland may add to the conservation interest by providing habitat edge environments favoured by some heathland birds and invertebrates... A divers e woodland strucrure with some open space, some areas of dense understorey and an overstorey of more mature trees is important" also "an element of managed scrub both within and fringing wet and neutral grasslands can be of great importance to certain birds... rotational citting should maintain patches of scrub at different ages of growth ensuring areas of young and middle-stage growth are mantained"

-

Re controlled winter burning "special care is required when some sensitive species are present"

31

Rempstone Heaths

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC; Dorset Heaths SAC)

“Dartford Warbler and Nightjar”

The mitigation measures applicable to this site included “Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September” [2/3/415, 418] and also “Vehicle movement restricted to existing tracks” [2/3/408] .

The Habitats Regulations process for Dorset Heathlands SPA judged that the restriction on shooting was adequate to protect Dartford warbler and nightjar (which are SPA species ) [2/3/415, 418] .

The matter was further addressed at Heydon 1 §§58 to 71, Heydon 2 §§37, 43 and 52, and Drewitt 1 §§13-19 and 25. The Court held that Natural England’s approach was rational.

Omission error not refuted.

Provides no protection to wintering Dartford warblers using heathland in winter.

1, 2, & 4

[mechanical disturbance] "the timing and scale of such disturbance will depend on local factors such as, for example, the needs of individual species of conservation concern"

32

River Frome

(Dorset Heathlands Ramsar)

“kingfisher, grey wagtail, reed bunting, reed warbler, sedge warbler, Cetti’s warbler etc. Over wintering birds include Redshank, snipe and lapwing, teal, wigeon, Bewick’s swan and black tailed godwit (although the last four listed are outside the boundary). Common sandpiper and green sandpiper are both regular users on the river's margins. Also not assessed for impacts on the three native aquatic mammals cited: water shrew, otter and water vole”

No. The citation [6/4/160] indicates that birds and mammals are not a feature of special interest in their own right, as opposed to habitats and invertebrates.

For example, mammal species are described merely as “recorded on” the site [6/4/163] and the breeding bird assemblage is described as “characteristic” [6/4/160] . The species listed should be interpreted as examples characteristic of the river itself and the associated riparian habitats.

Invertebrates are in a different category: the site is described as being of “high entomological interest” [6/4/163] .

Yes.

Features referred to are special and form part of citation. OLDs prevent (e.g.) killing and removal.

[Blank]

3 (& poss. 2)

"It may be beneficial to consider reinstating traditional management practuces where they are not in conflict with other nature conservation objectives, such as the specific requirements of certain birds or invertebrates"; [hay meadow management] "should always be after ground-nesting birds have fledged their young" and " management should allow winter flooding to occur and some shallow spalsh flooding into spring where breeding wetland birds are important "

33

Stokeford Heath s

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC)

“tree pipit or stonechat, hobby or snipe”

[6/4/166]

These species were not separately assessed but given the mitigation measures, the issue is academic.

The mitigation measures applicable to this site included, “Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September” [2/3/418] and “Restrict vehicles to existing tracks….” [2/3/408].

These are sufficient to protect all populations during the breeding season.

The Claimant’s argument that wintering populations of snipe and stonechat are inadequately protected is, in substance, an attempt to re-run the argument about wintering bird populations that was addressed by Natural England in the previous judicial review ( Heydon 1 §§58 to 71, Heydon 2 §§37 and 52, and Drewitt 1 §§13-19 and 25 ) and ultimately rejected by the Court.

Acceptance of 'possible' omission noted

Restrictions will not protect wintering populations of snipe or stonechat . Unclear which restrictions adopted.

1, 2, & 4

"An element of native, self-established deciduous woodland fringing the hrathland may add to the conservation interest by providing habitat edge environments favoured by some heathland birds and invertebrates"

34

Studland and Godlingston Heaths

(Dorset Heathlands SPA; Poole Harbour SPA; Dorset Heathlands Ramsar; Poole Harbour Ramsar; Dorset Heaths (Purbeck & Wareham) & Studland Dunes SAC)

“Breeding birds not considered are Nightjar, Stonechat and Water Rail”

Nightjar and stonechat were assessed: the SSSI matrix included “Assemblages of breeding birds ‐ Lowland heath” [5/2/196] and appropriate mitigation measures were identified .

Also assessed were “Aggregations of non-breeding birds” , namely “Gadwall… Goldeneye… Pochard… Scaup”   [5/2/196] .

The language used in the citation [6/4/171] does not indicate that water rail is a feature of special interest: “the many swamps and pools support several pairs of Water Rail”.

The mitigation measures that applied to this SSSI in included, “Restrict vehicles to existing tracks… Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September…. Avoid shooting between 1st September and 30 April in areas of intertidal, fen, reedbed and grazing marsh habitats…” [2/3/465] [2/3/418] [2/3/408] [5/2/196-7] .

These would also be sufficient to protect water rail, if this were a special interest feature.

The Claimants’ contention that these conditions “will not protect wintering populations of stonechat” is an attempt to re-run the argument about wintering bird populations using heathland that was addressed by Natural England in the previous judicial review (Heydon 1 §§58 to 71, Heydon 2 §§37 and 52, and Drewitt 1 §§13-19 and 25) and ultimately rejected by the Court.

As for overwintering “wildfowl” , officers assessed the non-breeding wildfowl named in the SSSI citation as using Little Sea (the lake at this SSSI), namely “Gadwall” , “Goldeneye” , “Pochard” , and “Scaup” . They reasonably judged that they would be adequately protected by the prohibition on shooting in intertidal, fen, reedbed and grazing marsh habitats [5/2/196] .

No admission of omission.

Cited restrictions will not protect wintering populations of stonechat. Unclear which restrictions adopted. Citation states "Outside of the breeding season, Little Sea is important for wildfowl". No restriction inposed to protect this interest feature. cf Lulworth Park and Lake.

1, 2, 3, & 4

"the presence of extensive shallow water and wet marginal substrates will provide the feeding conditions required by a varietry of wintering, passage and breeding birds such as dabbling ducks and waders" and also [recreational activities] "should be managed sypathetically to avoid conflict with the management of the lake for nature conservation"

35

Turners Puddle Heath

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC)

“Hobby and Stonechat”

No. The citation [6/4/176] uses different terminology to describe different bird species. Neither Hobby nor stonechat are SPA features. There is no reference to hobby or stonechat holding nationally significant populations, which was the criterion used for selection. Stonechat is given no particular status in the citation in terms of how it uses the site or at what level of importance. Hobby is described as feeding there with no suggestion of breeding.

No. The mitigation measures applicable to this site included “Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September” and “Restrict vehicles to existing tracks” [5/2/186] [2/3/418] [2/3/408] .

These would be sufficient to address these species, if they were features of special interest.

See overarching comments as to whether such species can disregarded as 'less than special'

[Blank]

3

"An element of native, self-established deciduous woodland fringing the hrathland may add to the conservation interest by providing habitat edge environments favoured by some heathland birds and invertebrates" and [re burning]  special care is required where some sensitive species are present"

36

Wareham Meadows

(Poole Harbour SPA; Dorset Heaths SAC; Poole Harbour Ramsar)

“various non-breeding birds”; “breeding birds… Cetti’s Warbler, Water Rail and Bearded Tit”

[6/4/178]

“Aggregations of non-breeding birds – Black-tailed Godwit” was assessed in the SSSI matrix [5/2/186] .

Further “various non-breeding birds” and breeding birds were not treated as features of special interest in their own right for this SSSI. However, given the mitigation measures, the issue is academic.

No. The mitigation measures applicable to this SSSI included: “Restrict vehicles to existing tracks… Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September… Avoid shooting between 1st September and 30 April in areas of intertidal, fen, reedbed and grazing marsh habitats.” [2/3/465] [5/2/186] .

These are sufficient to protect breeding and non-breeding birds.

Acceptance that breeding birds are aguably part of special interest, even on NE analysis.

Even if it is accepted that omissions at the S28G duty stage (SSSI screening) were 'captured' by the HRA process, the reliance on voluntary adoption of a prohibition on shooting in the breeding season and on opportunity constraints imposed by farming calendars does not read as imposition of protective provisions, more like protection provisions or other mitigating factors arising on an ancillary or serendipitous basis.

1, 2, & 4

"From April onwards, the area of standing surface water should be reduced to icrease the area available for nesting waders" and "birds using grazing marsh are directly vulnerable to disturbance, whcih can cause them to lose time spent feeding or drive them to areas with a poorer supply of food. Management should seek to minimise any harmful disturbance, especially during their breeding period and at times when bird populations are under stress, such as during severely cold conditions" also "late stage ditches may be important for reed dwelling species" and "an element of scrub, particukarly on the borders of grazing marsh, can be of importance to bird and inverebrates species" (e.g. Cetti's)

37

White Horse Hill

“Invertebrates… brown argus, chalkhill blue, small blue, dark green fritillary and dingy skipper”

No. The citation [6/4/180] contrasts “two nationally scarce species, Adonis blue… and Lulworth skipper” (which are features of special interest) with the other species identified by Mr Woodfield, which are described as “a number of local downland species” .

The mitigation measures for this SSSI included: “Restrict vehicles to existing tracks. Limit location of traps to existing sett footprint or areas of scrub” [5/2/187] .

This is sufficient to avoid damage to these species.

See previous comments as to whether such species can disregarded as 'less than special' having regard to OLDs etc

[Blank]

3

"Areas of managed scrub... Can be of great importance to certain and birds and invertebrates" (e.g. Small blue)

38

Winfrith Heath

(Dorset Heathlands SPA; Dorset Heathlands Ramsar; Dorset Heaths SAC)

“Nightjar… Hobby and woodlark”

Nightjar is referred to in the citation [6/4/183] as making a significant contribution to the internationally important population on the Dorset Heathlands SPA (hence the assessment of Nightjar in the Dorset Heathlands HRA template [2/3/415 ] ).

Hobby is not treated in the citation [6/4/183] as a feature of special interest: “the site forms part of the breeding territory of Hobby” . Nor is woodlark: the citation merely says it “has also been recently recorded” [6/4/183] .

No. Mitigation measures applicable to this site included “Restrict shooting activities to outside the bird breeding season-i.e. no activities until 1st September” and “Vehicle movements restricted to existing tracks” [5/2/187] [2/3/418] [2/3/408] .

These were judged to be sufficient to protect nightjar and woodlark in the HRA process for Dorset Heathlands SPA [2/3/415, 418] . They would also be sufficient to protect hobby, if this were a special interest feature.

Again, reliance on omissions at the S28G duty stage (SSSI screening) being  'captured' by the HRA process. In any event, woodlark is a Qualifying Interest Feature of the overarching SPA so impacts on it in this SSSI could impinge on the integrity of the European designation. It is difficult to argue that it is not a special interest feature in that context.

1, 2, 3, & 4

"An element of native, self-establoshed deciduous woodland fringing the heathland may add to the conservation interest by providing habitat edge environments favoured by some heathland birds" (e.g. Hobby, woodland, nightjar)

Area 17 - Somerset

39

The Quantocks

(Exmoor & Quantock Oakwoods SAC)

“Invertebrate interest”

“Also … the generic assemblage (‘woodland’) for breeding birds does not capture the fact that cited species (e.g. nightjar) will breed in non-woodland habitats on that site, thus species-specific considerations and applicable mitigation are lost in a generic 'lumped' assessment… "

The citation [6/4/200] does not describe the invertebrates as special in their own right: the opening paragraph merely says “Although the invertebrate interest of the area has not been examined in great detail, a number of nationally important species have already been recorded ”. Later it refers to “Invertebrates of note” [6/4/202]. The terms used are indicative of interest that gives context to the habitats but not species of special interest in their own right. This is to be contrasted with the way the special breeding bird interest is presented.

The mitigation measures that applied to this SSSI were: “avoid woodland areas” (i.e. no shooting, trapping and vehicle use in woodland areas) and, outside of woodland areas, “restrict vehicles to existing tracks. Limit location of traps to existing sett footprint” [5/2/202] .

These are sufficient to avoid damage to invertebrate species.

In relation to birds within the assemblage that will also breed on the periphery of the woodland, Natural England has considered this issue and, on a precautionary basis, will extend the prohibition on shooting so that there is no shooting during the bird breeding season (i.e. no shooting before 1 September) at this site.

[In practice, this is an academic debate, as no shooting would take place before September in any event because of the opportunity constraints imposed by farming calendars and other seasonal factors.]

Invertebrates are cited in OLDs document. No defence is offered in respect of the omission of potential impacts on nightjar.

[Blank]

3

"heathland... Supports a number of characteristic bird species" and "maintenance of scattered mature Scot's pine in undisturbed locations will provide suitable nest sites for hobbies" also "scattered stans with a bushy structure... Are of greater benefit to the characteristic bird and invertebrate species associated with gorse scrub". In woodland "both temporary and permanent open spaces benefit groups of invertebrates such as butterflies"

Area 19 - Wiltshire

40

Bowerchalke Downs

"Cited birds at Bowerchalke Downs…  not assessed"

No. The citation does not describe these birds as a feature of special interest in their own right: it says “ Birds typical of this habitat include…” and also refers to certain birds visiting the site or hunting in the area [6/4/214] .

Yes.

The citation for this SSSI is an example where the notified interest features list on the 'designated sites' webpages are not clearly and demonstrably distinguished from other species in the citation text. Hence adonis blue butterfly is listed, but dark green fritillary and dingy skipper etc are not. In parallel example citations for other SSSI (e.g. see East Coppice, Area 16 Dorset above), NE have accepted  that it is arguable whether such species are special interest features. Birds were only used in DW16 as a summary example .  The OLDs cite birds amongst the species that it is not permissible to kill or take.

[Blank]

3

"An element of managed srub, both within and fringing calcareous grassand, can be of great importance to certain birds"

41

Hang Wood

"Cited birds at… Hang Wood… not assessed"

No. The citation does not describe these birds as a feature of special interest. It says [6/4/221]: “Ornithological interest is not well documented but the wood is possibly one of the few Wiltshire breeding sites for both buzzard and wood warbler. Mammalian inhabitants include roe deer, fox and badger” . That does not imply the level of national importance or significance commensurate with special interest.

The bulk of the citation focuses on the woodland habitats from a botanical perspective. The two paragraphs at the end that mention faunal species including birds should be understood as giving further context to the special habitats.

Yes.

The citation for this SSSI is an example where the notified interest features list on the 'designated sites' webpages are not clearly and demonstrably distinguished from other species in the citation text. Hence adonis blue butterfly is listed, but dark green fritillary and dingy skipper etc are not. In parallel example citations for other SSSI (e.g. see East Coppice, Area 16 Dorset above), NE have accepted  that it is arguable whether such species are special interest features. Birds were only used in DW16 as a summary example.  The OLDs cite birds amongst the species that it is not permissible to kill or take.

[Blank]

3

"To avoid disturbance to breeding birds, the work is normally best done between the beginning of August and the end of february"

42

Gallows Hill

"Cited birds at…Gallows Hill… not assessed"

No. The citation [6/4/219] does not describe these birds as a feature of special interest. The final sentence says: “Resident birds include yellowhammer, linnet, kestrel and buzzard, although a comprehensive ornithological survey has not yet been undertaken. ”

The opening paragraph of the citation refers to habitats “containing animal and plant species of a nationally restricted distribution.” The only such animal species mentioned in the remainder of the citation is the Adonis blue butterfly (which is a feature of special interest). The other species, including the birds, should be interpreted as providing additional context to the special habitats.

Yes.

The OLDs cite birds amongst the species that it is not permissible to kill or take.

[Blank]

3

"An element of managed srub, hoth within and fringing calcareous grassand, can be of great importance to certain birds"

43

Martin and Tidpit Downs

“the wrong assemblage ("lowland damp grassland") has been assessed and again in a generic form. This does not permit species-specific considerations as to the particular requirements and sensitivities of (e.g.) Montagu's harrier or quail.” [3]

The breeding bird assemblage was assessed [5/2/206] . This was not the “wrong assemblage” and quail is a component of the assemblage.

As to Montagu’s harrier, this is merely described [6/4/224] as having bred successfully in recent years, which falls short of confirmed regular use and is not language indicative of a feature of special interest. 

No. The mitigation measures identified for this SSSI included: “restrict shooting activities to outside the bird breeding season” [5/2/206] .

These are adequate to address all birds named in the SSSI citation (including Montagu’s harrier and quail).

No explanation offered for charge that wrong assemblage assessed and other criticisms. On the scarce species quail, the Guidelines for Selection of Biological SSSIs allow for designation of features of regional importance. In any event, any successful breeding of Montagu's harrier is likely to represent >1% of the national populatioin which therefore makes it of national interest. There can be no doubt that these species represent part of the regional and national impotrtance of this SSSI.

[Blank]

1, 3

"An element of managed srub, both within and fringing calcareous grassand, can be of great importance to certain birds"

44

Cranborne Chase

“cited bird fauna”

[6/4/215]

Natural England accepted in September 2018 that there was a reasonable argument that these were special interest features and that the debate was not academic (because these features would affect the mitigation measures). On a precautionary basis it therefore agreed to introduce corresponding mitigation measures for this SSSI.

The Claimant was informed on 19 September 2018 that Natural England would impose a prohibition on shooting during the breeding season at this site [Annex/1] . That is sufficient to address the bird fauna.

[In practice, this is an academic debate, as no shooting would take place before September (i.e. after the breeding season) in any event because of the opportunity constraints imposed by farming calendars and other seasonal factors. ]

The text "the site supports a diverse woodland bird fauna" appears in the first para of the citation under 'Description and Reasons for Notification' There can be no doubt that it forms part of the special interest.

No difference argument relies on absence of shooting in breeding season due to "opportunity constraints imposed by farming calendars". This is not a protective provision, but a restriction which might arise on an ancillary or serendipitous basis. Such "opportunity constraints" are judged to be insufficient in other cases where conditions have been imposed. 

1, 4

"To avoid disturbance to breeding birds, the work is normally best done between the beginning of August and the end of february"

-

"An element of managed srub, hoth within and fringing calcareous grassand, can be of great importance to certain birds"

45

River Avon System

“Cited birds”

No. Under the 'Key features ' section [6/4/225-6] there is a helpful summary statement: 'The Avon is richer and more varied than in most chalk streams with over 180 species of aquatic plant having been recorded, one of the most diverse fish faunas in Britain and a wide range of aquatic invertebrates' . There is no reference in that sentence to bird communities.

The sections under 'Birds' and 'Mammals ' appear to be descriptive of the site's fauna rather than specifying the special interest [6/4/227] .

Yes.

The citation is an excellent example of the inconsistency in NE's approach. The claim that these should be disregarded as part of the special interest is reliant on application of the word 'extremely'. It is simply incorrect that NE claim that "The bird species listed would themselves not be enough to qualify as a bird assemblage" and yet the citation mentions "several pairs of the rare Cetti's warbler", a species which is unequivocally a Notified Feature for SSSI designation on other sites (e.g. Stodmarsh in Kent).  

[Blank]

3

"need to avoid trampling ground nesting birds"