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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> World Wild Life Fund & Ors, Re Application For Judicial Review [1998] ScotCS 38 (27 October 1998)
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Cite as: [1998] ScotCS 38
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OPINION OF LORD NIMMO SMITH in the Petition of (FIRST) W W F - UK, a Company limited by Guarantee and incorporated under the Companies Acts and having its registered office at Panda House, Weyside Park, Godalming, Surrey, GU7 1XR; and (SECOND) THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS, established by Royal Charter and having their Head Office at The Lodge, Sandy, Bedfordshire, SG19 2DL Petitioners; for Judicial Review of decisions relating to the Protection of European Sites at Cairngorm Mountain, by Aviemore and proposals for construction of a funicular railway thereon ________________ |
27 October 1998
Introduction
This application for judicial review came before me for a first hearing. The petitioners aver that the first petitioner ("WWF") is established as a nature conservation body. It has a branch office in Scotland at 1 Crieff Road, Aberfeldy, Perthshire. It has about 129,000 members and supporters resident in Scotland. It provides funding for purchase of land for conservation purposes, conservation work and conservation research projects in inter alia the Cairngorm area and in particular in relation to the particular areas referred to in the petition. The second petitioner ("RSPB") has its Scottish headquarters at 17 Regent Terrace, Edinburgh. It is established as a nature conservation body with a particular interest in the conservation of birds. It owns land in Scotland and in particular owns the Abernethy Estate, which extends to the summit of Cairn Gorm mountain and marches with some of the areas I shall refer to. The petitioners aver that the Abernethy Estate will be affected by the decisions which they seek to subject to judicial review. RSPB has about 970,000 members in the United Kingdom, of whom about 67,000 reside in Scotland. It is involved in conducting scientific research on environmental matters, land management and advising land owners. The petitioners make further averments about their connection with the subject matter of the petition. The title and interest of each of the petitioners to make this application was not put in issue by any of the respondents, so I need not elaborate on this aspect of the matter.
The respondents, in the order in which they appeared before me, are, first, Scottish Natural Heritage ("SNH"); second, the Secretary of State for Scotland ("the Secretary of State"); third, Highland Council ("HC"); fourth, Highlands & Islands Enterprise ("HIE"); and, fifth, the Cairngorm Chairlift Company Limited ("CCC"). The petitioners were jointly represented by senior counsel. SNH and the Secretary of State were each represented by senior and junior counsel. HC was represented by junior counsel. HIE and CCC were jointly represented by senior and junior counsel. SNH is established under the Natural Heritage (Scotland) Act 1991, and its functions under section 2 of that Act include the giving of advice to the Secretary of State and to planning authorities. HC is established under the Local Government etc (Scotland) Act 1994 with effect from 1 April 1996 and is the planning authority for the area in question. Its predecessor in that function was Highland Regional Council ("HRC"). HIE is the owner, in succession to the Highlands & Islands Development Board, and CCC is the tenant of subjects which I shall call "the skiing area", situated on the north side of Cairn Gorm.
The Cairngorm range of mountains is sufficiently well known for detailed description of it to be unnecessary. It contains several of the highest summits in Scotland, after Ben Nevis, and is unique in its extent of high ground. At the heart of the range is a granite massif, the most conspicuous features of which have been formed by glacial action. This massif is divided from north to south by the pass of the Lairig Ghru. To the north of the eastern part of the massif lies Cairn Gorm, a mountain 1,245 metres high. To the north side of Cairn Gorm lie a series of corries called the Northern Corries, separated from each other by a series of spurs projecting approximately northwards from Cairn Gorm and its subsidiary tops, which are linked by an area of high plateau which extends southwards to Ben Macdui, a mountain 1309 metres high. In a report commissioned by WWF from Dr Adam Watson and others ("the Watson report"), dated January 1997, a number of areas are discussed, of which areas A, B, C and F are relevant for present purposes. The petitioners refer to these areas as "the excluded areas", but I do not propose to adopt this expression, and I only refer to these areas as such because all the parties chose to do so. Generally to the northwest and north of Cairn Gorm lie two corries, Coire Cas and Coire na Ciste, which are divided from each other by a spur called Sròn an Aonaich. Coire Cas, which is the more westerly of the two corries, is bounded on the southwest by a spur called Fiacaill a'Choire Chais. Area F centres on Coire Cas and includes Coire na Ciste to the east, with the intervening spur of Sròn an Aonaich, and the eastern slopes of Fiacaill a'Choire Chais to the west. Its highest point is at or near the summit of Cairn Gorm to the south and its lowest points are the ends of roads which terminate in car parks in each of the two corries. Area A is a somewhat larger area which extends around area F on the east and north, from the eastern summit slopes of Cairn Gorm in the south, and in the north to the lowest reaches of Coire Cas, Coire na Ciste and two corries to the east thereof. Area C is a smaller area which is principally occupied by the spur of Fiacaill a'Choire Chais. Area B is an even smaller area to the south side of the summit of Cairn Gorm. CCC operate skiing facilities in Coire Cas and Coire na Ciste, in the former of which there is a two-stage chairlift, which lies wholly within area F.
The Cairngorm range is the subject of various conservation measures. A number of sites of special scientific interest ("SSSIs") have been designated in that general area under the Wildlife and Countryside Act 1981. Under Directive 79/409/EEC on the Conservation of Wild Birds ("the Birds Directive") provision is made for the establishment by member states of special protection areas ("SPAs"). I shall refer to an area which has been proposed as an SPA, under procedures which I shall discuss in due course, as a "pSPA". Under Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Flora and Fauna ("the Habitats Directive"), provision is made for the establishment by member states of special areas of conservation ("SACs"). I shall refer to an area which has been proposed as a candidate SAC, under procedures which I shall also discuss, as a "cSAC". The general area of the Cairngorm range has been the subject of a pSPA and cSAC. In the Conservation (Natural Habitats, &c.) Regulations 1994 (S.I.1994 No.2716) ("the 1994 regulations"), which implemented the Habitats Directive, inter alia SACs and SPAs are referred to as "European sites". A statutory framework for publication consultation on environmental issues is provided by the Environmental Assessment (Scotland) Regulations 1988 (S.I.1988 No.1221) as amended by the Environmental Assessment (Scotland) Amendment Regulations 1994 (S.I.1994 No.2012) ("the 1988 regulations"). The 1988 regulations implemented the requirements of Directive No.85/337 on the assessment of certain private and public projects on the environment ("the EA Directive"). Under the 1988 regulations provision is made for the lodging of environmental statements, in certain circumstances, along with applications for planning permission, and for the making thereafter of environmental assessments. On 29 August 1994 CCC submitted to HRC an application for planning permission for a development on the skiing area which, in brief, involved the replacement of the existing chairlift in Coire Cas with a funicular railway. The application was accompanied by an environmental statement. On 27 March 1997 HC as planning authority granted planning permission ("the planning permission") to CCC for the development. The relevant legislation at that time was contained in the Town & Country Planning (Scotland) Act 1972, which has since been repealed and replaced by the Town & Country Planning (Scotland) Act 1997, which came into force on 27 May 1997. Despite its repeal, I shall for convenience refer to the 1972 Act as if it were still in force. On various dates in March 1997 HC, SNH, HIE, CCC and the Bank of Scotland, as heritable creditors, entered into a Minute of Agreement under section 50 of the Town and Country Planning (Scotland) Act 1972 and section 49A of the Countryside (Scotland) Act 1967 ("the section 50 agreement"). Annexed to the section 50 agreement was a draft Visitor Management Plan ("VMP"), the purpose of which was to manage the estimated 200,000 visitors who would use the funicular railway each year. In terms of their petition, the petitioners seek declarator that:
(1) The Secretary of State acted unlawfully in proposing that the Cairngorm cSAC boundaries should exclude "the excluded areas" and that the Cairngorm pSPA should exclude area B and/or that SNH acted unlawfully in advising him that these areas should be excluded. (For reasons which I shall explain, the petitioners originally sought this declarator in respect of area C as well, but this was deleted by amendment at the beginning of the hearing.)
(2) The Secretary of State acted unlawfully in (i) failing to notify the proposed cSAC to the European Commission ("the Commission") and/or (ii) failing to include "the excluded areas" within any proposed notification. (In the petition, declarator is also sought, as a third sub-head, that the Secretary of State acted unlawfully in failing to intervene in the application for planning permission, but counsel did not move me to pronounce a declarator in these terms.)
(3) The decision made by SNH on or about 4 March 1997 to withdraw its objection to the grant of planning permission by HC to CCC for the development of the funicular was unlawful.
(4) The failure by SNH to carry out a proper assessment in terms of regulation 48 of the 1994 regulations of the implications of the project for the European sites' conservation objectives was unlawful.
(5) The failure by HC to carry out an assessment in terms of regulation 48 of the 1994 regulations of the implications of the project for the European sites' conservation objectives was unlawful.
(6) The failure by SNH and/or HC to require information about the proposed VMP and/or the section 50 agreement in the environmental statement was unlawful.
(7) In the light of the above, the grant of planning permission by HC to CCC on 27 March 1997 was unlawful.
The petitioners further seek reduction of (1) the planning permission; (2) the section 50 agreement; (3) the decision by SNH not to include "the excluded areas" in the cSAC list recommended to the Secretary of State for transmission to the Commission; (4) the Secretary of State's decision not to include "the excluded areas" in the cSAC list for transmission to the Commission; (5) the Secretary of State's decision not to include area B in the pSPA; and (6) the decision by SNH to withdraw its objection to the grant of planning permission. In terms of the petition, the petitioners also seek reduction of the Secretary of State's decision not to call in the planning application made by CCC for the funicular project, but counsel did not move me to reduce this decision. The grounds upon which these remedies are sought were argued in the context of three issues, which counsel for the petitioners called "the boundary issue", "the assessment issue" and "the environmental issue", and as this nomenclature was adopted by counsel for the respondents, I shall use it myself.
At the outset, I must emphasise that I am not concerned with the merits of any of these decisions. An important point, which was emphasised by the First Division in the recent leading case of West v Secretary of State for Scotland 1992 S.C.385 at p.413, is that judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument, does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. It is not competent for the Court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted. Accordingly, nothing that I shall say is intended to be understood as an expression of opinion about the merits of any of the decisions to which the application relates. In this context I would refer also to Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T.345, in which Lord President Emslie said at pp.347-8:
"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it."
This passage is applicable, mutatis mutandis, to any other decision-making person or body acting within his or its statutory remit. Reference may be made also to Council of Civil Service Unions v Minister for the Civil Service [1985] A.C.374, in which Lord Diplock said at p.410:
"Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality,' the second 'irrationality' and the third 'procedural impropriety'.... By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. .... By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B.223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. .... I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
It is in light of these dicta that I shall consider the issues which I have to decide.
History of events
I propose at this stage to attempt to summarise the history of events, so far as relevant to the issues I have to decide. Although only some aspects of this history are relevant to each issue, I think it best to present the summary in continuous chronological order, so that each issue can be seen in its wider context.
Since about 1961 CCC have operated skiing facilities in Coire Cas and Coire na Ciste. A road from Aviemore by way of Loch Morlich and Glen More approaches these two corries from the north through a forested area, at the upper margin of which the road forks; the western fork ends in a car park in Coire Cas and the eastern fork in a car park in Coire na Ciste. The main skiing facilities are situated in Coire Cas. From the car park, access to the upper slopes is provided by a two-stage chairlift system. There are three main buildings: at the upper end of the car park is the lower station, known as Day Centre, whence the first stage of the chairlift runs to the middle station, known as Shieling. From there, the second stage of the chairlift runs to the upper station, known as Ptarmigan. The alignment of the chairlift system, which runs approximately in a south-easterly direction from the car park, is such as to bring it from the lower part of Coire Cas along its eastern side to the top of the spur of Sròn an Aonaich which bounds the corrie on the east side. From the upper station a path runs southwards to the summit of Cairn Gorm. The chairlift is operated at all times of the year; but its operation is subject to the weather, and it cannot be operated in high winds. A track, to which there is no public vehicular access, connects the three stations. In addition to the chairlift there are a number of ski tows in Coire Cas and there are also skiing facilities in Coire na Ciste, about which I was given no detailed information. There are also a number of snow fences, some of which are situated on the Fiacaill a'Choire Chais.
By letter dated 2 October 1990 SNH's predecessor the Nature Conservancy Council ("NCC") notified inter alios RSPB of a Cairngorms pSPA. Previously, in 1987 and 1988, notification had been given of four contiguous SSSIs, called Cairngorms, Eastern Cairngorms, Rothiemurchus Pinewood and Northern Corries. The NCC stated that in addition in its opinion the area consisting of these four SSSIs met the criteria for designation as an SPA under the Birds Directive, and that it proposed to advise the Secretary of State that the area within the boundary as defined on the attached map should be designated by him as such. The boundary, which followed the outer boundaries of the four contiguous SSSIs, enclosed an area extending from Rothiemurchus Forest in the north to Forest of Mar in the south, and from Ben Avon in the east to Glen Feshie in the west. It did not include areas A and F, but it did include areas B and C. Annexed to the letter were the map referred to therein and a copy of the citation which set out the reasons why the site had been selected as an SPA. This stated inter alia that the site qualified under Article 4(1) of the Birds Directive by regularly supporting in summer members of eleven species of birds, in respect of most of which the numbers of birds and the percentages of the British breeding population of the species were given. These included 240 pairs of dotterel, Charadrius Morinellus, constituting 28% of the EEC and British breeding population of this species. It also stated that the site qualified under Article 4(2) of the Birds Directive by supporting nationally or internationally important breeding populations of at least eight rare migrant species, which included up to 40 pairs of snow bunting, Plectrophenax Nivalis, which constituted 50% of the EEC and British breeding population. It concluded by stating that as well as its importance for the individual listed species, the site was also of strong scientific interest for a number of distinctive bird species assemblages which depended on habitats represented within the site. These included montane plateau specialists, among them dotterel and snow bunting. I was not informed of any reply by RSPB to this letter.
Subsequent events are set out in a paper dated 6 November 1997 which was prepared for the Board of SNH. According to that paper, designation of the site as an SPA was delayed while the Government considered proposals for montane SPAs in Scotland in the light of inter alia (i) their relationship to guidelines on skiing development and (ii) the need for further scientific advice on the identification of SPAs for wide-ranging and thinly dispersed species. The paper goes on to state that at its meeting on 1 March 1994 the Board of SNH was asked to look at the boundaries for three proposed montane SPAs, including Cairngorms, prior to re-submitting departmental briefs to the Scottish Office for these sites. At that meeting the Board agreed to remove an area to the south of the summit of Cairn Gorm (i.e. area B) from the pSPA on the basis that this area "was not necessary in order to safeguard the dotterel interest".
On 29 August 1994 CCC submitted to HRC an application for planning permission, in which the proposed development was summarised as follows:
"Construction of funicular railway from Coire Cas car park via Shieling to Ptarmigan; removal of existing two-stage chairlift system and existing lower and middle station buildings; removal of existing garage buildings at Coire Cas car park; alterations and extensions to existing buildings at Day Lodge, Shieling and Ptarmigan to incorporate new funicular stations, catering and exhibition facilities, administration offices and workshops; use and subsequent reinstatement of land at Coire na Ciste for the disposal of spoil."
Notification of the application was made to inter alios RSPB as a party having a notifiable interest in neighbouring land. The application was accompanied by an environmental statement dated August 1994 prepared by the firm of Land Use Consultants in accordance with the 1988 regulations, and annexed to the application was a certificate in terms of regulation 16 thereof that the requisite notice had been given to all parties having a notifiable interest in neighbouring land. The environmental statement included discussion of what was at that time called a Tourist Management Programme (subsequently VMP). There had been correspondence between Land Use Consultants and RSPB during the preparation of the environmental statement in early 1994, and a copy of the completed document was provided to RSPB shortly after the application was lodged. In terms of section 23 of the Town and Country Planning (Scotland) Act 1972 and the 1988 regulations the application and the environmental assessment were advertised by HRC (at the expense of CCC) in the Edinburgh Gazette on 2 September 1994 and in the Badenoch and Strathspey Herald on 8 September 1994. In each case a period of 28 days was allowed for representations to be made, so that the latest date for the making of representations was 6 October 1994. By that date HRC had received 475 letters of objection and 52 letters of support. A further 87 letters of objection and 43 letters of support were received after that date. One of the timeous letters of objection, dated 3 October 1994, was written by RSPB. In this letter RSPB stated that it wished to object to the application "due to the potential impact of the development on the habitats and species of international importance occurring within the Cairngorms". This letter was amplified by a further lengthy letter by RSPB dated 14 October 1994. In the course of this letter RSPB mentioned that the Cairngorms had been proposed as an SPA and that formal designation was expected shortly, and also that it was highly likely that the site would be included in the forthcoming list of SACs under the Habitats Directive. The letter concluded with inter alia these paragraphs:
"5.1 Bearing in mind:
- the probable adverse impact of this application,
- the inadequate mitigation measures, and
- the lack of evidence that the development is necessary due to over-riding public interest including those of a social or economic nature,
it is our view that the proposed development is contrary to international, national, regional and local policies and therefore, in its present form, should be refused.
5.2 Accordingly, the RSPB objects to this application and recommends that Highland Regional Council refuse the application, unless an alternative option is agreed (see Section 6)."
Section 6, which was entitled "Possible modification proposed by RSPB", included these paragraphs:
"6.1 The RSPB does not underestimate the potential difficulties of trying to resolve the issues. However, we believe that it may be possible to develop a package of mitigation measures to address the nature conservation concerns set out in our letter of objection.
6.2 Such a package would be a modification and an extension of the currently proposed Tourist Management Programme, but should:
- demonstrate a clear commitment to meeting the objective of reducing visitor numbers (and thereby pressures) on the plateau and in the Northern Corries
- fully meet this requirement by including proposals which define:
the parameters to be monitored and the monitoring programme,
the targets to be met,
the thresholds which would trigger remedial management action,
the actions which would be taken and by whom and for how long,
the funding arrangements.
- be agreed before the granting of planning permission
- be legally binding.
6.3 If such an agreement were to be negotiated to address all our concerns, then we would be expected to be able to withdraw our objection.
6.4 We would therefore urge Highland Regional Council to defer determination of this application to permit discussions between the Cairngorm Chairlift Company, SNH as the statutory nature conservation organisation, RSPB as the neighbouring landowner and any other interested parties."
Nothing was said in the letter to suggest that there was an issue about the boundaries of the pSPA and in particular that in the view of RSPB areas A and F ought to be included within it.
The 1994 regulations came into force on 30 October 1994.
On 1 November 1994 the Board of SNH considered CCC's application for planning permission and the environmental statement, and on 2 November 1994 SNH wrote a letter to HRC which concluded with the statement:
"SNH has no alternative but to object to the application, as presently framed, on the following grounds:
(a) The scale of the facilities at the Ptarmigan is out of keeping with the landscape of the area;
(b) there is concern about the management of increased visitor numbers beyond the end of the funicular and adjacent areas, and that there could be an unacceptable impact on the physical and key biological features from the inevitable increase in public pressure."
The SNH paper dated 6 November 1997, to which I have already referred, states that subsequent to the removal of area B from the Cairngorms pSPA, following discussion with the Scottish Office, SNH officials also agreed to remove another section of the pSPA, Fiacaill a'Choire Chais, i.e. area C; counsel for SNH told me that this took place in November 1994.
On 27 February 1995 RSPB wrote to HRC and to CCC referring to section 6 of its letter dated 14 October 1994 and stating, under reference to the possible agreement referred to therein, that they believed, subject to further legal advice, that such an agreement could be achieved under section 50 of the Town and Country Planning (Scotland) Act 1972 and would include "both the application area and adjacent areas of conservation importance that may be affected and, as such, would include the RSPB as party to the agreement". RSPB invited further discussion.
On 6 March 1995 the Scottish Office Environment Department published Circular 6/1995 entitled "Nature Conservation: Implementation in Scotland of EC Directives on the Conservation of Natural Habitats and of Wild Flora and Fauna and the Conservation of Wild Birds: The Habitats and Birds Directives" ("Circular 6/1995"). This was addressed to inter alios the Chief Executive of HRC. It provided advice on the implementation in Scotland of the Habitats Directive, and further guidance on the Birds Directive (on which guidance had been given by previous Circulars), with particular reference to the 1994 regulations. Paragraph 14 of the circular stated:
"Some sites have been identified as potentially qualifying for SPA classification but are currently subject to further survey or consultation work before decisions can be taken about their classification. Similarly sites which might qualify for SAC designation will be on a list which the Government will publish for consultation soon and thereafter a draft list will be sent to the European Commission. For the purpose of considering development proposals or other uses of land affecting them, potential SPAs and SACs should be treated in the same way as classified SPAs."
On 31 March 1995 publicity was given by the Scottish Office Environment Department and SNH to a list of possible SACs in the UK prepared by the Joint Nature Conservation Committee (on behalf of English Nature, Countryside Council for Wales and SNH) for the relevant Government departments. The list included the Cairngorms cSAC. In the reasons for recommendation of this area as a cSAC it was stated that it contained habitat types and/or species which were rare or threatened within a European context and was considered to have a high diversity of habitats/species of European importance, and listed thirteen qualifying interests. The relevant map showing the boundary of the proposed SAC did not include areas A, B, C and F, so that in the relevant area the boundary was the same as that for the pSPA after November 1994. The list was sent to local authorities and to various bodies, including each of the petitioners. Their responses were not lodged as productions, but I was informed by their counsel that during the summer of 1995 both WWF and RSPB responded as consultees and suggested that the skiing area should be included within the SAC.
Counsel for SNH told me that in March 1995 SNH were satisfied about CCC's landscaping proposals. On 24 May 1995, following extensive discussion and negotiation on matters raised during the course of technical and public consultation, CCC submitted an amendment to the planning application, specifically modifying the design of the proposed top station and providing additional information on a number of matters including the management of visitors. The amendment was accompanied by an addendum to the environmental statement. This was advertised in the Edinburgh Gazette on 2 June 1995 and in the Badenoch & Strathspey Herald on 8 June 1995, and a period of 28 days was allowed for further representations to be made. Meanwhile HRC undertook further technical consultations on the amendment. By letter dated 29 May 1995 all those who had previously made representations were invited to make further representations on the amendment to the planning application and the addendum to the environmental statement. By letter dated 5 July 1995 RSPB stated that it wished to maintain its objection to the application, for reasons set out in an annex to the letter. In the annex reference was made to the 1994 regulations, Circular 6/1995, and the list of cSACs. RSPB urged HRC to have full regard to these recent developments and their implications, and in particular asked that "due account [be] accorded to the probability that the European Commission will, in the near future, formally agree with the UK Government that the Cairngorms be recognised as a Site of Conservation Importance, and should proceed to SAC designation." Nothing was said about the boundaries of the cSAC and in particular the suggestion that the skiing area should be included. The annex also discussed the Cairngorm Tourist Management Programme and visitor management options (subsequently VMP).
At the conclusion of the period of advertisement no new parties had made representations in respect of the amendment to the planning application although, according to information provided by HC, many wrote to reiterate or amplify the terms of their original letters.
On 10 July 1995 SNH wrote to HRC commenting on various landscaping issues, visitor management and the timing of the application. The letter concluded by stating that SNH felt it had no option but to sustain its objection to the application on the basis that its concerns regarding the adequacy of management arrangements for substantially increased numbers of visitors gaining access to the Cairn Gorm-Ben Macdui plateau area as well as the Northern Corries SSSI, all of which fell into the Cairngorms pSPA which SNH had a special duty to safeguard under the Birds Directive, had not yet been resolved.
On 12 July 1995 the Director of Planning of HRC, after discussion with CCC, agreed to a request from the Cairngorms Partnership Board (a body whose members are appointed by the Secretary of State) to defer determination of the planning application until such time as the Board was able to progress its Management Strategy to a stage where it was sufficiently well formed to provide a coherent strategic background for full consideration of the implications of the development. The Director of Planning agreed to defer making a report about the application until the meeting of the Planning Committee which was to take place on 6 December 1995.
On 20 June 1995 the Government announced the submission of a list of cSACs which it had forwarded to the Commission; this did not at that stage include the Cairngorms cSAC. In a letter to various bodies, including the petitioners, dated 20 June 1995 the Scottish Office Environment Department indicated that consultation on other sites was proceeding, with a view to submitting a further list to the Commission, and stated:
"A number of consultees have suggested extensions to sites on the consultation list and the inclusion of additional sites. The nature conservation agencies, through the JNCC in liaison with DOE Northern Ireland, are considering the scientific cases for them. Any additions to the list which are agreed to qualify scientifically will then go through a public consultation process, in which owners, occupiers and representative bodies are invited to comment, before they are considered for submission to the Commission."
On 11 August 1995, following further discussion between the Director of Planning of HRC and CCC, CCC submitted the first draft of a proposed VMP to a restricted group of interested parties, including SNH, for comment. On 22 August 1995 HRC formally consulted, on a confidential basis, inter alios RSPB on the draft VMP, emphasising its preliminary nature and seeking comments on its content. On 11 September 1995 RSPB wrote to CCC commenting on the draft VMP, describing it as a "much needed and most welcome first step towards devising a comprehensive management strategy acceptable to all parties". The comments were set out in an annex to the letter. In this, RSPB referred to paragraph 6 of its letter of objection dated 14 October 1994 and to the "package" of mitigation measures which in its view were required. It considered that this "package" was what would be required to adhere to current UK and European legislation, given the application area's proximity to a pSPA and cSAC. It said that in effect paragraph 6.2 of its letter of objection meant that all the elements of any agreement and the legality of that agreement were inseparable. It summarised its views by saying:
"3.1 The RSPB welcomes the production of this document. However, we find that many of the visitor management options outlined either seem to have considerable practical difficulties in their implementation or are insufficient to ensure that this proposal does not have an adverse impact on surrounding areas of nature conservation importance.
3.2 We would hope that future drafts would include:
- further detail on the range and effectiveness of different legal agreements,
- a management strategy (along the lines of that agreed by the TMP) which was specific to the different circumstances of the funicular proposal. For example, an objective needs to be included along the lines of 'to prevent environmental damage by visitors especially in the zones outside the Ski Area',
- a hierarchy of management options which would be implemented to ensure compliance with both the above strategy and relevant legislation,
- a costed programme of monitoring specifying who was to provide the necessary funds."
Nothing was said in this letter about the inclusion of the skiing area in the cSAC or pSPA.
On 5 October 1995 HRC engaged Professor Jeremy Rowan-Robinson of Aberdeen University to assist it in preparing a section 50 agreement.
On 16 October 1995 CCC submitted a revised draft VMP, which was again circulated for comment on a confidential basis to inter alios RSPB.
On 26 October 1995 SNH wrote to the Cairngorms Partnership, an association of which RSPB is a member, in response to a letter dated 16 October 1995 requesting clarification about the prospective designation of parts of the Cairn Gorm plateau as an SPA and SAC. The letter included this passage:
"Cairngorms is both a proposed SPA (pSPA) and a possible SAC (pSAC). There have been detailed discussions between Scottish Office and SNH regarding the boundary, with the result that the summit area of Cairngorm [area B] and an area along the Fiacaill a'Choire Chas (sic) [area C] have been excluded (see enclosed map). The pSPA and pSAC boundaries are coincident."
As I understand it, RSPB were aware of the terms of this letter.
Also on 26 October 1995 RSPB wrote to HRC making detailed comments on the second draft VMP. It concluded by stating that RSPB still had serious reservations about how effective the methods outlined would be in reducing pressure on adjacent areas of conservation importance, and in particular had concerns about various issues which were fully discussed in the letter.
On 1 November 1995 HRC circulated an initial opinion of Professor Rowan-Robinson about the use of a section 50 agreement to secure a number of issues, principally in relation to visitor management.
On 1 December 1995, at a meeting of the Cairngorms Partnership, a presentation was made by a representative of SNH. According to the notes on this presentation, the meeting was told:
"A single SAC is proposed for the Cairngorms comprising a number of existing SSSIs. At the top of Cairn Gorm the SPA boundary differs from the existing SSSI boundary to exclude the summit. The reasons for this are the lack of qualifying bird interest in the immediate summit area and potential conflicts with ski-ing. The boundary also goes to the west of the Fiacall (sic) ridge because of the existing snow fencing. The SAC boundary is likely to follow the same boundary as the proposed SPA boundary."
On 6 December 1995 at a meeting of HRC's Planning Committee a report was made on processing the application for planning permission and the Committee agreed to the application being considered in due course at a special meeting, involving a hearings procedure, held locally in Badenoch and Strathspey.
On 11 December 1995 RSPB wrote to HRC's Department of Planning asking about progress on the possible section 50 agreement. Again, no mention was made of the fact that the skiing area was not included in the pSPA and cSAC.
On 10 January 1996 CCC sent a third draft VMP, dated January 1996, to RSPB, and on 16 January 1996 CCC formally submitted this draft to HRC. This was the first published draft. On 19 January 1996 HRC wrote to all parties who had made representations about the planning application and environmental assessment, informing them about the draft VMP and inviting them to comment by 12 February 1996. There were also advertisements in the Edinburgh Gazette on 23 January and in the Badenoch and Strathspey Herald on 25 January, again inviting representations by 12 February. On 26 January 1996 HRC undertook technical consultation on the draft VMP and on a first draft of the heads of a section 50 agreement.
By 12 February 1996, which was the end of the period for representations to be made on the draft VMP, 552 letters of objection and 627 letters of support had been received. A further 46 letters of objection and 1723 letters of support were received after that date but before the subsequent meeting of the Planning Committee of HRC. The letters of objection included a letter by WWF dated 8 February 1996 and a letter by RSPB dated 12 February 1996. In its letter dated 8 February 1996 WWF stated that it considered the proposed development to be "totally inappropriate in an area whose wild land quality has been much more widely recognised in recent years, and where inappropriate mechanical intrusion should be reduced, not increased." The letter also stated:
"We are also unconvinced by the visitor management plans and the potential of the Section 50 agreement to secure long term protection in the face of economic development pressures."
Nothing was said in the letter about the view of WWF that the skiing area should be included in the cSAC. In its letter dated 12 February 1996 RSPB maintained its objection to the application for the reasons outlined in an attached annex. These reasons were summarised in inter alia these terms:
"The proposed funicular railway is adjacent to, and may affect adversely, the Cairngorms candidate SPA/proposed SAC.
Without a legally binding visitor management agreement with strong and robust safeguards, the proposal will lead to damage to internationally important bird populations and their habitats and would, therefore, in our view, be contrary to the EU Birds and Habitats Directives (particularly Articles 4 and 6, respectively).
To comply with these Directives, permission for a funicular railway can only be granted if, and after, a comprehensive agreement which guarantees the protection of the SPA is in place. As such an agreement is not in place, and there is considerable uncertainty about the effectiveness of the proposed agreement, the precautionary principle should be applied and the planning application refused."
The letter contained inter alia detailed comments on the draft VMP (a fourth version of which was by then available) and the first draft of heads of agreement for a possible section 50 agreement.
On 13 February 1996 SNH wrote to HRC in light of a decision by the Board of SNH in the previous week to continue to sustain its objection while continuing efforts were made with HRC and CCC to address weaknesses which were perceived in the "section 50/visitor management plan package". The letter went on to discuss these matters in detail. Among points made by SNH were that it itself should be a party to the section 50 agreement, that monitoring should be carried out under the supervision of an independent body, and that SNH should have the ultimate veto of any developments which might affect the adjoining European site.
On 4 March 1996 the Planning Committee of HRC met in public to determine the planning application. It had before it a detailed report by the Director of Planning dated March 1996. All parties who had made representations were invited to attend and those who had made timeous representations were invited to speak. After due consideration of the planning application and of alternative proposals, the Committee determined that it was minded to approve the application subject to (i) the conclusion of an appropriate section 50 agreement; (ii) the withdrawal of SNH's objection; (iii) the imposition of detailed planning conditions, in accordance with recommendations made by the Director of Planning in his report; and (iv) a further report being presented to the Committee on 20 March 1996.
The report by the Director of Planning included a summary of RSPB's objections and a copy of its letter dated 12 February 1996 was annexed to the report. A representative of RSPB was present at the meeting and addressed the Committee. No suggestion was made at the meeting that the skiing area ought to be included in the pSPA and cSAC. A number of passages in the Director of Planning's report made it clear that one of the main issues which the Committee required to address in determining the application was "the implications for nature conservation, particularly the intention to designate the adjoining land in the high mountain zone as a special area of conservation and a special protection area" (para.9.1) and in para.9.4 it was expressly stated:
"The funicular planning application site lies outwith the proposed Cairngorms SPA and SAC."
On 25 March 1996 SNH wrote to HRC discussing the draft VMP and a third draft of heads of agreement for the section 50 agreement, which the Board of SNH had considered at a meeting on 5 March 1996. The letter stated:
"In SNH's role as adviser, both to your council as the competent authority and to the Secretary of State, the Board considered that, in the light of the material uncertainties that existed, it could give no assurance that the interests of the site would not be damaged if the development were to proceed on the proposed basis. SNH, therefore, maintains its objection."
On 18 March 1996 CCC sought deferral of determination of the planning application by the Planning Committee of HRC to allow further discussion with SNH and others to take place. On 3 April 1996 CCC wrote to HC, who had replaced HRC as planning authority with effect from 1 April 1996, indicating its intention to amend the draft VMP. The principal features were that the funicular railway would be operated on the basis of a "closed system" for visitors at the upper terminal and that a system of charging for use of the Coire Cas car park would be introduced. On 17 April 1996 the Planning Committee of HC met. It had before it a report by the Director of Planning reporting on progress since the meeting on 4 March 1996. By that time a fourth draft of heads of agreement for a section 50 agreement had been prepared. The Committee endorsed the previous decision with respect to the planning application and also agreed to retain the services of Professor Rowan-Robinson in relation to the preparation of the section 50 agreement. On 24 April 1996 the Transport Services Committee of HC agreed to make a clearway order on the Cairngorm access road from Glenmore to the car park in the event of planning permission being granted for the funicular railway project. On 23 April 1996 HC wrote to SNH about the proposed amendment to the VMP, the fourth draft of heads of agreement for the section 50 agreement and the decision of the Planning Committee on 17 April and asked for the revised proposal and further information to be put before the Board of SNH on 7 May 1996 by way of formal consultation by the planning authority.
On 10 May 1996 SNH wrote to HC, following the meeting of its Board on 7 May. At that meeting the Board decided that it was minded to withdraw SNH's objection to the proposed development subject to the satisfactory conclusion of the section 50 agreement. It agreed that the revised proposals for visitor management and the conditional approval of the making of a clearway order on the road constituted a material change to the proposals which it had considered at its meeting in March 1996, and that the effects of this change were to significantly reduce the reliance on, and the complexity of, the monitoring/administrative/legal arrangements for future management of the development, and to minimise as far as practicable uncertainties inherent in the previous visitor management proposals. The letter made a number of comments on a revised draft VMP. The letter referred to "SNH's public statement to the effect that SNH is minded to withdraw its objection subject to conditions". On 15 May 1996 the latest revised version of the VMP was submitted to HC.
On 27 June 1996 there was a meeting between RSPB and the Scottish Office. No minute or note of this meeting was lodged as a production. Counsel for the petitioners told me that there was discussion then about a fresh round of consultation about the Cairngorms pSPA and that RSPB were asked not to object to the removal of areas B and C. I have already referred to the dates on which decisions were taken not to include these areas, and to statements made to that effect in the letter dated 26 October 1995 by SNH to the Cairngorms Partnership and at the meeting attended by the Cairngorms Partnership on 1 December 1995. Counsel informed me, however, that it was only at the meeting on 27 June 1996 that RSPB appreciated that areas B and C were not to be included in the pSPA. They were, as I have already said, not included in the cSAC.
On 2 July 1996, at the request of the Scottish Office, SNH initiated a further round of consultation on the Cairngorms pSPA. It wrote to inter alios HC and RSPB, inviting comments by 3 October 1996. The letter referred to the consultations carried out by the NCC in 1990 and went on to state:
"As a result of these consultations, the boundary of the proposed SPA has been revised to exclude areas in the vicinity of Coire Cas and Cairngorm Summit. Given this change to the boundary, the time that has elapsed and also the introduction of new regulations which apply to SPAs [i.e. the Habitats Directive and the 1994 regulations] ....., the Secretary of State has now asked SNH to carry out a further round of consultations on the proposed designation of the Cairngorms as an SPA."
The map showed that areas B and C were not included within the boundary of the pSPA. The letter also stated that SNH had forwarded all responses received to its letter of 31 March 1995 about the Cairngorms cSAC to the Scottish Office and that it understood that consideration was being given to the inclusion of the Cairngorms in the list of sites to be proposed to the EC for SAC designation. In the citation annexed to the latter it was stated inter alia that the proposed Cairngorms SPA qualified under Article 4(1) of the Birds Directive by supporting an internationally important population of one species and nationally important populations of six others, including dotterel (240 pairs, 28% GB and EC). It stated:
"The pSPA is also important for dotterel as a gathering ground during the spring and autumn periods for individuals that breed elsewhere in Scotland and Europe."
It went on to state that the Cairngorms pSPA was of strong scientific interest for its unusual range of breeding birds, including Arctic species such as dotterel and snow bunting.
On 31 October 1996 WWF distributed a first draft of the Watson report to inter alios SNH, HC and HIE. In an accompanying letter recipients of the report were invited to comment by 15 November 1996 and before WWF made the report more widely available and before it made any recommendations based on its findings. It asked recipients to "respect the confidential nature of this report (as a draft) until WWF make the report more widely known". The letter also stated:
"I should mention that we have engaged legal council (sic) to advise us upon the implications of the report for both the designations process in the Cairngorms, and the current planning process surrounding the proposed Cairn Gorm funicular."
On 4 November 1996 a further draft VMP was circulated for comment to the parties who were negotiating the section 50 agreement. On 14 January 1997 a final draft VMP was again circulated to all parties to the proposed section 50 agreement.
During January 1997 a revised draft of the Watson report was circulated to inter alios SNH. It discussed areas A to F. In its summary it concluded by stating:
"10. In short, the boundaries of proposed nature conservation sites in the Cairn Gorm/Glen More area are inconsistent, incompatible and lacking in scientific objectivity. A thorough, more detailed, rigorous impartial review is required, in the public interest."
On 6 March 1997, after extensive negotiation, HC, SNH, CCC, HIE and the Bank of Scotland approved the terms of the final draft of the section 50 agreement and SNH wrote to confirm withdrawal of its objection to the planning application subject to the approved section 50 agreement being executed by all the parties and thereafter recorded in the Register of Sasines. On 26 March 1997 the section 50 agreement was finally executed and lodged with the Keeper of the Register of Sasines. On 27 March 1997, following acknowledgement from the Keeper of the Register of Sasines, HC granted planning permission to CCC for the proposed development.
The planning permission was granted subject to 34 numbered conditions, which included the following:
"1. Except as otherwise provided by the terms of this permission, the developer shall construct and operate the development in accordance with the provisions of the application, the Environmental Statement, the Addendum to the Environmental Statement, the Visitor Management Plan, the approved drawings and the Section 50 Agreement relative hereto.
3. No development shall take place until such time as Clearway Order has been made in respect of the public road - the Cairngorm Access Road - between Glenmore and the Coire Cas car park.
27. Prior to the commencement of development unless otherwise agreed in writing by the Planning Authority in consultation with Scottish Natural Heritage, a base line survey to document the existing condition of the ski area in relation to soils, habitats, species of birds and levels and patterns of visitor use and to cover such matters and to be carried out in a manner as shall be agreed in writing by the Planning Authority in consultation with Scottish Natural Heritage, shall be undertaken by the developer over a consecutive period of 12 months, and shall be submitted to and require the approval in writing of the Planning Authority in consultation with Scottish Natural Heritage.
28. Within nine months of the commencement of development, the developer shall prepare, in consultation with the Planning Authority and Scottish Natural Heritage, a final Visitor Management Plan for Non-Skiing Visitors, which shall be submitted to and require the approval of the Planning Authority in consultation with Scottish Natural Heritage. For the avoidance of doubt, use by the public of the funicular railway shall not commence until such approval has been given. The Visitor Management Plan shall define the developer's objectives and his approach to visitor management and, amongst other things, the Visitor Management Plan shall deal with the preparation and implementation of a monitoring scheme which shall include details of the following:-
(i) the matters to be the subject of detailed monitoring, including the monitoring of non-ski use during the ski season;
(ii) the method of monitoring to be adopted and the manner in which it is to be carried out;
(iii) the division of responsibility for carrying out and paying for each aspect of monitoring;
(iv) the identification of suitably qualified persons to undertake the monitoring;
(v) the arrangements for reporting the results; and
(vi) the criteria against which the results of monitoring will be tested and measured and the identity of the persons to undertake the testing and measurement.
29. The developer shall implement the obligations imposed on him in the approved Visitor Management Plan, including implementation of such aspects of the approved Monitoring Scheme as are his responsibility in accordance with the terms of condition 28(iii) above, in the manner and in the time stipulated in the Visitor Management Plan and to the satisfaction of the Planning Authority in consultation with Scottish Natural Heritage. The funicular railway shall not be brought into commercial use until such time as those obligations in the approved Visitor Management Plan which are to be implemented prior to that event have been carried out to the satisfaction of the Planning Authority in consultation with Scottish Natural Heritage."
I shall discuss the terms of the section 50 agreement and the draft VMP in due course.
The present application was lodged on 27 May 1997.
In May 1997 the final version of the Watson report was prepared. It was entitled "A Provisional Scientific Assessment of the Boundaries of Proposed Nature Conservation Sites at Cairn Gorm and Glen More".
On 25 September 1997 the Cairngorms SPA was designated. The designated site excluded areas B and C. On 17 October 1997 the site was submitted to the Commission as a cSAC. In November 1997 the Board of SNH considered the paper dated 6 November 1997 in which the boundaries of the Cairngorms SPA and cSAC were considered in light of the Watson report and up-to-date scientific information. Following a recommendation in the paper, the Board decided to advise the Secretary of State that area C should now be included in the Cairngorms cSAC.
The Boundary Issue
I turn now to the first of the three main issues upon which I was addressed by counsel. Although it was treated as a single issue, it gave rise to a number of discrete points, which I propose to discuss separately. These are (1) the proper interpretation of the relevant provisions of the Birds Directive and the Habitats Directive, (2) the relevancy of the petitioners' case on the boundary issue against SNH and the Secretary of State, (3) the relevancy of the petitioners' case on the boundary issue against HC, HIE and CCC and (4) whether the petitioners' case against HC, HIE and CCC on the boundary issue is barred by mora. Strictly speaking, the fourth point precedes the third, but I have decided that it is easier for purposes of presentation to treat them in this order.
(1) The proper interpretation of the relevant provisions of the Birds Directive and the Habitats Directive
The Birds Directive applies to birds, their eggs, nests and habitats. As summarised in Circular 6/1995, it provides for the protection, management and control of all species of naturally occurring wild birds in the European territory of Member States, requires Member States to take sufficient measures to preserve a sufficient diversity of habitats for all species of wild birds naturally occurring within their territories in order to maintain populations at ecologically and scientifically sound levels, and requires Member States to take special measures to conserve the habitat of certain particularly rare species and of migratory species. It is necessary to quote from it at some length. The second recital states:
"Whereas a large number of species of wild birds naturally occurring in the European territory of the Member States are declining in number, very rapidly in some cases; whereas this decline represents a serious threat to the conservation of the natural environment, particularly because of the biological balances threatened thereby; ...".
The third recital states:
"Whereas the species of wild birds naturally occurring in the European territory of the Member States are mainly migratory species; whereas such species constitute a common heritage and whereas effective bird protection is typically a trans-frontier environment problem entailing common responsibilities; [....].".
The sixth to ninth recitals state:
"Whereas the conservation of the species of wild birds naturally occurring in the European territory of the Member States is necessary to attain, within the operation of the common market, [one] of the Community's objectives regarding the improvement of living conditions, a harmonious development of economic activities throughout the Community and a continuous and balanced expansion, but the necessary specific powers to act have not been provided for in the Treaty [establishing the European Economic Community];
Whereas the measures to be taken must apply to the various factors which may affect the numbers of birds, namely the repercussions of man's activities and in particular the destruction and pollution of their habitats, capture and killing by man and the trade resulting from such practices; whereas the stringency of such measures should be adapted to the particular situation of the various species within the framework of a conservation policy;
Whereas conservation is aimed at the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe; whereas it makes it possible to control natural resources and governs their use on the basis of the measures necessary for the maintenance and adjustment of the natural balances between species as far as is reasonably possible;
Whereas the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds; whereas certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution; whereas such measures must also take account of migratory species and be coordinated with a view to setting up a coherent whole; [....]"
Article 1 provides inter alia:
"1. This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.
2. It shall apply to birds, their eggs, nests and habitats."
Article 2 provides:
"Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level."
Article 3 provides:
"In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.
2. The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures:
(a) creation of protected areas;
(b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones;
(c) re-establishment of destroyed biotopes;
(d) creation of biotopes."
Article 4 provides:
"1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.
In this connection, account shall be taken of:
(a) species in danger of extinction;
(b) species vulnerable to specific changes in their habitat;
(c) species considered rare because of small populations or restricted local distribution;
(d) other species requiring particular attention for reasons of the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.
Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of the species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.
2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
3. Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.
4. In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats."
It should be noted that the first sentence of paragraph 4 of this Article has been amended by provisions of the Habitats Directive which I shall quote in due course.
Articles 5 to 8 of the Directive impose on the Member States a series of obligations on the protection of wild birds, and their eggs and nests, other than the protection of their habitats. These include the obligation "to establish a general system of protection for all species of birds referred to in Article 1", and prohibitions on the marketing and hunting of wild birds, subject in each case to limited exceptions. Derogations are allowed from these obligations under the strict conditions specified in Article 9. Article 14 allows the Member States to introduce stricter protective measures than those provided for in the Directive itself. In accordance with Article 18, the Member States were obliged to "bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within two years of its notification." For the United Kingdom, this period expired on 6 April 1981.The remaining provisions of the Directive are not relevant for present purposes. Annex I to the Directive was replaced by the Annex to Commission Directive 85/411/EEC of 25 July 1985 amending Council Directive 79/409/EEC on the conservation of wild birds. The species listed in it include the dotterel. I was not addressed on the steps taken by the United Kingdom to comply with the Birds Directive, prior to the coming into force of the 1994 regulations. As I understand it, however, the Wildlife & Countryside Act 1981 was introduced in part to implement the Birds Directive, and protection has been given to a number of areas by notifying them as SSSIs under the provisions of the Act. The Act also empowers the Secretary of State to make orders designating areas as SPAs. At one point counsel for the petitioners appeared to suggest that Article 18 of the Birds Directive meant that SPAs required to be notified by 6 April 1981; but this is not correct. All that was required was to have in place by that date the legislative machinery which would enable the appropriate administrative steps to be taken.
The Habitats Directive, as summarised in Circular 6/1995, aims to contribute to the conservation of biodiversity by requiring Member States to take measures designed to maintain or restore certain natural habitats and wild species at a favourable conservation status in the Community, giving effect to both site and species protection objectives. The Directive transposes the Bern Convention on European Wildlife and Natural Habitats into Community law. The first and third to tenth recitals to the Directive state:
"Whereas the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community, as stated in Article 130r of the Treaty; [ .... ]
Whereas, the main aim of this Directive being to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, this Directive makes a contribution to the general objective of sustainable development; whereas the maintenance of such biodiversity may in certain cases require the maintenance, or indeed the encouragement, of human activities;
Whereas, in the European territory of the Member States, natural habitats are continuing to deteriorate and an increasing number of wild species are seriously threatened; whereas given that the threatened habitats and species form part of the Community's natural heritage and the threats to them are often of a transboundary nature, it is necessary to take measures at community level in order to conserve them;
Whereas, in view of the threats to certain types of natural habitat and certain species, it is necessary to define them as having priority in order to favour the early implementation of measures to conserve them;
Whereas, in order to ensure the restoration or maintenance of natural habitats and species of community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable; Whereas all the areas designated, including those classified now or in the future as special protection areas pursuant to [the Birds Directive], will have to be incorporated into the coherent European ecological network;
Whereas it is appropriate, in each area designated, to implement the necessary measures having regard to the conservation objectives pursued;
Whereas sites eligible for designation as special areas of conservation are proposed by the Member States but whereas a procedure must nevertheless be laid down to allow the designation in exceptional cases of a site which has not been proposed by a Member State but which the Community considers essential for either the maintenance or the survival of a priority natural habitat or a priority species;
Whereas an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site which has been designated or is designated in future; [...]."
Article 1 provides various definitions for the purpose of the Directive, including inter alia:
"(a) conservation means a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status as defined in (e) and (i);
(b) natural habitats means terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features, whether entirely natural or semi-natural;
(c) natural habitat types of community interest means those which, within the territory referred to in Article 2:
(i) are in danger of disappearance in their natural range; or
(ii) have a small natural range following their regression or by reason of their intrinsically restricted area; or
(iii) present outstanding examples of typical characteristics of one or more of [five specified biogeographical regions].
Such habitat types are listed or may be listed in Annex I;
(d) priority natural habitat types means natural habitat types in danger of disappearance, which are present on the territory referred to in Article 2 and for the conservation of which the Community has particular responsibility in view of the proportion of their natural range which falls within the territory referred to in Article 2; [.....];
(e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within the territory referred to in Article 2.
The conservation status of a natural habitat will be taken as 'favourable' when:
- its natural range and areas it covers within that range are stable or increasing, and
- the species structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and
- the conservation status of its typical species is favourable as defined in (i);
(f) habitat of a species means an environment defined by specific abiotic and biotic factors, in which the species lives at any stage of its biological cycle; [....]
(i) conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2;
The conservation status will be taken as 'favourable' when:
- population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and,
- the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and
- there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis;
(j) site means a geographically defined area whose extent is clearly delineated;
(k) site of Community importance means a site which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000 referred to in Article 3, and/or contributes significantly to the maintenance of biological diversity within the biogeographic region or regions concerned.
For animal species ranging over wide areas, sites of community importance shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction;
(l) special area of conservation means a site of community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated; [......]"
Article 2 provides:
"1. The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies.
2. Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.
3. Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics."
Article 3 provides inter alia:
"1. A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to [the Birds Directive].
2. Each Member State shall contribute to the creation of Natura 2000 in proportion to the representation within its territory of the natural habitat types and the habitats of species referred to in paragraph 1. To that effect each Member State shall designate, in accordance with Article 4, sites as special areas of conservation taking account of the objectives set out in paragraph 1 [......]"
Article 4 provides inter alia:
"On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction [...]
The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site[.....]
2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the five biogeographical regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States' lists identifying those which host one or more priority natural habitat types or priority species.
[ ....]
The list of sites selected as sites of community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.
3. The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.
4. Once a site of community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.
5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2, it shall be subject to Article 6(2), (3) and (4)."
Article 6 provides:
"1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of over-riding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Whereas the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."
Article 7 provides inter alia:
"Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of [the Birds Directive] in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under the Birds Directive, where the latter date is later."
Of the remaining Articles I need mention only Article 23, in accordance with which Member States were obliged to bring into force the necessary measures to comply with the Habitats Directive within two years of notification, i.e. by June 1994. The United Kingdom did not in fact implement the Directive until 30 October 1994, when the 1994 regulations came into force.
Annex I contains a list of natural habitat types of community interest whose conservation requires the designation of special areas of conservation, and Annex II contains a list of animal and plant species of community interest whose conservation requires the designation of special areas of conservation. Annex III is in these terms:
CRITERIA FOR SELECTING SITES ELIGIBLE FOR IDENTIFICATION AS SITES OF COMMUNITY IMPORTANCE AND DESIGNATION AS SPECIAL AREAS OF CONSERVATION
STAGE 1: Assessment at national level of relative importance of sites for each natural habitat type in Annex I and each species in Annex II (including priority natural habitat types and priority species)
A. Sites assessment criteria for a given natural habitat type in Annex I.
(a) Degree of representativity of the natural habitat type on the site.
(b) Area of the site covered by the natural habitat type in relation to the
total area covered by that natural habitat type within national territory.
(c) Degree of conservation of the structure and functions of the natural
habitat type concerned and restoration possibilities.
(d) Global assessment of the value of the site for conservation of the
natural habitat type concerned.
B. Size assessment criteria for a given species in Annex II.
(a) Size and density of the population of the species present on the site
in relation to the populations present within the national territory.
(b) Degree of conservation of the features of the habitat which are
important for the species concerned and restoration possibilities.
(c) Degree of isolation of the population present on the site in
relation to the natural range of the species.
(d) Global assessment of the value of the site for conservation of
the species concerned.
C. On the basis of these criteria, Member States will classify the sites which they propose on the national list as sites eligible for identification as sites of Community importance according to their relative value for the conservation of each natural habitat type in Annex I or each species in Annex II.
D. That list will show the sites containing the priority natural habitat types and priority species selected by the Member States on the basis of the criteria in A and B above.
STAGE 2: Assessment of the Community importance of the sites included on the national lists.
1. All the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will be considered as sites of Community importance.
2. The assessment of the Community importance of other sites on Members States' lists, i.e. their contribution to maintaining or re-establishing, at a favourable conservation status, a natural habitat in Annex I or a species in Annex II and/or to the coherence of Natura 2000 will take account of the following criteria:
(a) relative value of the site at national level;
(b) geographical situation of the site in relation to migration of species in Annex II and whether it belongs to a continuous ecosystem situated on both sides of one or more internal Community frontiers;
(c) total area of the site;
(d) number of natural habitat types in Annex I and species in Annex II present on the site;
(e) global ecological value of the site for the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2, as regards both the characteristic or unique aspect of its features and the way they are combined."
It can be seen from these provisions that the timetable for classification of any SAC in the United Kingdom was still running at the time when the planning permission was granted.
The 1994 regulations state in regulation 3(1) that they make provision for the purpose of implementing, for Great Britain, the Habitats Directive. The explanatory note to the regulations (which is not part of them, but appears to me to be accurate) summarises their provisions in these terms:
"Part I contains introductory provisions.
Part II provides for the conservation of natural habitats and habitats of species, and in particular -
regulations 7 to 15 make provision for the selection, registration and notification of sites to be protected under the Directive ('European sites');
regulations 16 and 17 make provision for management agreements for European sites;
regulations 18 to 27 make provision in respect of European sites for the control of damaging operations and for special nature conservation orders;
regulations 28 to 32 make provision for byelaws and compulsory purchase orders as respects European sites; and
regulations 33 to 36 make special provision for the protection of European marine sites.
Part III provides for the protection of certain wild animals and plants and in
particular -
regulation 39 makes it an offence, subject to certain exceptions, deliberately to capture, kill or disturb those animals or to trade in them; and
regulation 43 makes it an offence, subject to certain exceptions, to pick, collect, cut, uproot or destroy those plants or to trade in them.
Part IV makes provision for the adaptation of planning and certain other controls for the protection of European sites; in particular -
regulations 48, 49 and 54 require the effect on a European site to be considered before a grant of planning permission and, subject to certain exceptions, restrict the grant of planning permission where the integrity of the European site would be adversely affected;
regulations 50 and 51 and 55 to 58 require planning permissions granted before the date on which a site becomes a European site (or if later, the commencement of these Regulations) to be reviewed and in certain circumstances revoked where the integrity of the site would be adversely affected."
Counsel for the petitioners expressly accepted that the 1994 regulations implemented the Habitats Directive and advanced no submission to the effect that the regulations could not be construed in a manner consistent with the Directive. There are, however, expressions in the regulations which have the meaning given to them by the Directive. Regulation 2(2) provides that unless the context otherwise requires, expressions used in the regulations and in the Habitats Directive have the same meaning as in that Directive, and that certain expressions are defined in Article 1 of the Directive, including "priority natural habitat types", "site", "site of community importance" and "special area of conservation". Regulation 2(1) provides that the expression "European site" has the meaning given by Regulation 10, in paragraph (1) of which the expression is defined as meaning inter alia an SAC and an area classified pursuant to Article 4(1) or (2) of the Birds Directive, i.e. an SPA. Regulation 7 provides:
"7(1) On the basis of the criteria set out in Annex III (Stage 1) to the Habitats Directive, and relevant scientific information, the Secretary of State shall propose a list of sites indicating with respect to each site -
(a) which natural habitat types in Annex I to the Directive the site hosts; and
(b) which species in Annex II to the Directive that are native to Great Britain the site hosts.
(2) For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction.
For aquatic species which range over wide areas, such sites shall be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction.
(3) Where appropriate the Secretary of State may propose modification of the list in the light of the results of the surveillance referred to in Article 11 of the Habitats Directive.
(4) The list shall be transmitted to the Commission on or before 5th June 1995, together with information on each site including -
(a) a map of the site;
(b) its name, location and extent, and
(c) the data resulting from application of the criteria specified in Annex III (Stage 1)
provided in a format established by the Commission."
Regulation 8 provides:
"(1) Once a site of Community importance in Great Britain has been adopted in accordance with the procedure laid down in paragraph 2 of Article 4 of the Habitats Directive, the Secretary of State shall designate that site as a special area of conservation as soon as possible and within six years at most.
(2) The Secretary of State shall establish priorities for the designation of sites in the light of -
(a) the importance of the sites for the maintenance or restoration at a favourable conservation status of -
(i) a natural habitat type in Annex I to the Habitats Directive; or
(ii) a species in Annex II to the Director,
and for the coherence of Natura 2000; and
(b) the threats of degradation or destruction to which those sites are exposed."
It is not necessary at this stage to quote any other provision of the regulations.
Given the definition of "European site" in the regulations, it is necessary to return to the relevant provisions of the Directives. Counsel for the petitioners submitted that, on a proper construction of the relevant provisions of the Birds Directive and the Habitats Directive, the boundaries of a "most suitable territory" or "site", which has been selected as an SPA or SAC, should be drawn by reference to scientific criteria alone, and in consequence all the contiguous or linked qualifying habitats or species populations must be included. While SNH and the Secretary of State, in performing their respective roles, had a discretion in the initial selection of a "most suitable territory" as an SPA or "site" as an SAC, once selected the European site must include all contiguous habitats, and/or habitats used by relevant species. Counsel submitted, crucially, that Member States had no discretion in boundary delineation. The procedure which they required to follow fell into two stages. The first stage was the preparation of a provisional list from readily available data. At this stage Member States had a limited discretion as to which sites to include, for example one estuary might be regarded as more suitable than another, but if the two estuaries were of equal suitability then both must be included. Thereafter, detailed scientific data on each site were collected. The second stage was the determination of the boundaries of each site by reference to these scientific data. At this stage Member States had no discretion, because at this stage the Birds and Habitats Directives were solely concerned with the scientifically gauged extent of qualifying habitats and species.
In support of this approach counsel sought to rely on four decisions of the European Court of Justice under the Birds Directive, which in his submission applied mutatis mutandis to SACs as well as to SPAs, and I now turn to consider these cases.
The first case relied on by counsel for the petitioners was Case C-57/89 Commission of the European Communities v Federal Republic of Germany [1991] ECR I-883 ("Leybucht Dykes"), in which the Court held, in proceedings brought by the Commission under Article 169 of the EEC Treaty, that although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as SPAs pursuant to Article 4(4) of the Birds Directive, they do not have the same discretion to modify or reduce the extent of such areas, which contain the most suitable environments for the species listed in Annex I, and thus unilaterally escape from the obligations imposed on them by Article 4(4) of the Directive. The Court also held that the power of Member States to reduce the extent of SPAs can be justified only on exceptional grounds corresponding to a general interest which is superior to the general interest represented by the ecological objective of the Directive, and that in that context the economic and recreational requirements referred to in Article 2 of the Directive do not enter into consideration, since that provision does not constitute an autonomous derogation from the system of protection established by the Directive. The Leybucht is a bay in the East Frisian Wattenmeer, surrounded by dykes. The Federal Republic of Germany had given notice to the Commission of its classification as an SPA, with a "precise territorial delimitation, constituted by the present line of the dyke" (judgment, para.17). The Court was considering a proposal, as part of a coastal defence project, for displacement of the dyke, which would entail a reduction in the protected area. The Court accepted that the danger of flooding and the protection of the coast constituted sufficiently serious reasons to justify the dyke works and the strengthening of coastal structures as long as those measures were confined to a strict minimum and involved only the smallest possible reduction of the SPA. It also accepted that the desire to ensure the survival of the fishing port of Greetsiel could be taken into account in order to justify the decision on the line of the new dyke because there were offsetting ecological benefits, but solely for that reason, because it was in principle incompatible with the requirements of the provisions of Article 4(4) to take account of a concern to ensure that fishing vessels from Greetsiel had access to the harbour. It can be seen from this summary that the Court was examining the consequences of the designation of an area as an SPA and had nothing to say about the approach to designation or the identification of boundaries, beyond accepting that Member States have a certain discretion with regard to the choice of the territories which are most suitable for classification as SPAs. There was no discussion of the manner in which that discretion falls to be exercised.
In the second case, Case C-355/90, Commission of the European Communities v Kingdom of Spain [1993] ECR I-4221 ("Santoña Marshes") the Commission, in proceedings brought under Article 169 of the Treaty, sought a declaration that inter alia by not classifying the Santoña Marshes as an SPA, contrary to the provisions of Article 4(1) and (2) of the Birds Directive, and by not taking appropriate steps to avoid pollution or deterioration of habitats in the Santoña Marshes, contrary to Article 4(4), the Kingdom had failed to fulfil its obligations under Articles 5 and 189 of the Treaty. In granting this declaration, the Court held inter alia (1) that although Member States do have a certain margin of discretion with regard to the choice of SPAs, the classification of those areas is nevertheless subject to certain ornithological criteria determined by the Directive, such as the presence of birds listed in Annex I, on the one hand, and the designation of a habitat as a wetland area, on the other (para.26); and (2) under reference to Leybucht Dykes, although Member States do have a certain discretion with regard to the choice of territories which are most suitable for classification as SPAs, they do not have the same discretion under Article 4(4) of the Directive in modifying or reducing the extent of those areas (para.35). The Santoña Marshes were described in the report for the hearing, paras.1-3, as an ecosystem comprising five river estuaries which together formed a bay leading to the open sea on the coast of Cantabria in Northern Spain. There was no discussion at any stage of the boundaries of the area in question, and so far as I can discover there was no dispute about what was meant by "the Santoña Marshes". At paragraph 9 of the Advocate General's Opinion it is stated:
"Almost all the evidence produced by the Commission relates specifically to the spoonbill. It claims that the Santoña Marshes are of vital interest for the survival of that species of birds, providing an essential staging post (i.e. resting and feeding area) on their migration route between the Netherlands and North Africa ... The Spanish Government, for its part, has acknowledged to the Court that the Santoña Marshes ought to be classified as a special protection area to provide protection for the spoonbill."
This last point is more fully vouched in a footnote on p.I-4247. I refer also to the judgment of the Court at para.27. It is against this background that the case was decided. The Court rejected a number of arguments advanced by the Spanish Government about the construction of Articles 3 and 4 of the Birds Directive, holding that Member States are not authorised to invoke, at their option, grounds of derogation based on taking other interests into account. With respect, more specifically, to the obligation to take special conservation measures for certain species under Article 4 of the Directive, the Court held that such grounds must, in order to be acceptable, correspond to a general interest represented by the ecological objective of the Directive. In particular, the interests referred to in Article 2 of the Directive, namely economic and recreational requirements, do not enter into consideration, as that provision does not constitute an autonomous derogation from the general system of protection established by the Directive. The Court rejected a contention by the Spanish Government that the obligations laid down in Article 3 and 4 can, by their nature, be fulfilled only gradually, not immediately. Accordingly, classification of the Santoña Marshes as a nature reserve could not be regarded as satisfying the requirements laid down in the Directive, either in respect of the territorial extent of the area, since the nature reserve did not cover the whole of the marshes, nor as regards its legal status as a protected area, since measures as essential as those determining the management of the area or governing the use of the marshes and the activities carried out there had not been adopted. The Court further held that in authorising, or not preventing, various actions, such as the building of a road and the establishment of industrial estates, the installation of aquaculture facilities and the discharge of untreated waste water, the Kingdom of Spain had failed to fulfil its obligations under Article 4(4) of the Directive by not taking appropriate steps to avoid pollution or deterioration of habitats in the Santoña Marshes.
I have set out the issues and the grounds of decision in this case at some length in order to demonstrate that, on my reading of the case, there is nothing in it which supports the approach advanced by the petitioners for determining the boundaries of a SPA. As I have said, it contains no specific discussion of the boundaries of the area called "the Santoña Marshes", but it seems to me to underlie the whole discussion that the boundaries of that area were known, and indeed this must have been inherent in the Spanish Government's acknowledgement, in the face of undisputed scientific evidence, that the Santoña Marshes ought to be classified as a SPA. This was therefore the starting point, and the Court was concerned with an examination of the consequences of that recognition in the other circumstances that had arisen. The Santoña Marshes case therefore in my opinion amounts to no more than an application of the approach established in the Leybucht Dykes case to an area which had not yet been accorded the status of an SPA but whose entitlement to that status was not disputed by the Member State.
Thirdly, in case C-44/95, Regina v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805 ("Lappel Bank") the Court held, in answer to questions referred to it by the House of Lords under Article 177 of the EC Treaty, that Article 4(1) or (2) of the Birds Directive must be interpreted as meaning that a Member State is not authorised to take account of the economic requirements mentioned in Article 2 of the Directive when choosing and defining the boundaries of an SPA or even to take account of economic requirements constituting a general interest superior to that represented by the ecological objective of the Directive. The Court further held that a Member State may not take account of economic requirements in so far as they amount to imperative reasons of overriding public interest of the kind referred to in Article 6(4) of the Habitats Directive, as inserted in the Birds Directive. Although the latter provision widened the range of grounds on which it might be justified to encroach upon SPAs already designated as such, by expressly including therein reasons of a social or economic nature, it nevertheless did not make any change regarding the initial stage of classification referred to in Article 4(1) and (2), and therefore the classification of sites as SPAs must in all circumstances be carried out in accordance with the criteria accepted by those provisions. The Lappel Bank is an area of intertidal mudflat which is geographically within the Medway Estuary and Marshes, on the north coast of Kent. Following the recognition of its ornithological importance it was included in the proposed Medway Estuary and Marshes SPA in 1991. On 15 December 1993, however, the Secretary of State announced the classification of the Medway Estuary and Marshes as an SPA, while excluding the Lappel Bank from the designated area. He sought to justify this exclusion on the view that the need not to inhibit the viability of the Port of Sheerness and the significant contribution that expansion into the area of Lappel Bank would make to the local and national economy outweighed its nature conservation value. In rejecting this, the Court said, in paragraph 26 of its judgment (page I-3852) that it was the criteria laid down in paragraphs (1) and (2) of Article 4 of the Birds Directive which are to guide the Member States in designating and defining the boundaries of SPAs, and that it was clear from the relevant passage in the judgment in Santoña Marshes that the criteria in question are ornithological criteria. I regard this therefore as a case in which, apart from economic considerations which could not lawfully be taken into account, there was no dispute that the ornithological criteria alone would require the inclusion of the Lappel Bank in the SPA.
The fourth case relied on by counsel for the petitioners was Case C-3/96 Commission of the European Communities v Kingdom of the Netherlands, 19 May 1998, unreported. In that case the Court, in proceedings brought by the Commission under Article 169 of the EC Treaty, declared that, by classifying as SPAs territories whose number and total area were clearly smaller than the number and total area of the territories suitable for classification as SPAs within the meaning of Article 4(1) of the Birds Directive, the Kingdom of the Netherlands had failed to fulfil its obligations under the Directive. In 1989 the International Council of Bird Preservation published an ornithological study entitled "Inventory of Important Bird Areas in the European Community" referred to as "IBA 89". The study identified 70 sites in the Netherlands, covering an area of 797,920 hectares, as qualifying for classification on ornithological grounds. The Netherlands Ministry of Agriculture and Fisheries drew up its own list of potentially classifiable territories, which contained 53 sites with a total area of 398,180 hectares, corresponding in part to 57 sites mentioned in IBA 89. The Netherlands Government gave no explanation during the course of the proceedings of the scientific criteria on which its list of territories potentially classifiable as SPAs was based. The Netherlands classified 23 SPAs with a total area of 327,602 hectares, coinciding wholly or partly with 33 of the sites listed in IBA 89. As one of these SPAs covered some 250,000 hectares, the remaining SPAs covered 77,602 hectares. The Commission contended that the number and total area of the SPAs fell manifestly below the quantitative obligation arising from Article 4(1), and that the area of 77,602 hectares covered by 22 of the SPAs was inadequate to ensure sufficient protection for a large number of the species listed in Annex 1. The Commission argued that the obligation to classify is infringed if a Member State manifestly disregards the number and area of the territories listed in IBA 89. The Netherlands Government contended that the designation of the SPAs was only one of the measures by which a Member State might perform its obligation under Article 4(1) of the Directive to take special conservation measures, and that Member States might also have recourse to other conservation measures to comply with that obligation and it had done so in various respects. The Netherlands Government also argued that Member States have a margin of discretion in implementing Article 4(1), which merely required designation of the most suitable territories as SPAs. The scheme of the provision was thus based on an assessment in the specific case of the question whether a particular site was one of the most suitable territories. The previous cases before the Court all related to whether a Member State should have classified a particular site as an SPA and the Commission had not shown, let alone proved, that in the present case in implementing Article 4(1) the Kingdom of the Netherlands exceeded the limits of its discretion in any specific cases. The Court observed, firstly, that, contrary to the contention of the Kingdom of the Netherlands, Article 4(1) of the Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I, an obligation which it is not possible to avoid by adopting other special conservation methods. It followed from that provision, as interpreted by the Court, that if such species occurred on the territory of a Member State, it was obliged to define inter alia SPAs for them (see case C-334/89 Commission v Italy [1991] ECR
I-3, para.10). Such an interpretation of the obligation to classify SPAs was moreover consistent with the system of specifically targeted and reinforced protection laid down by Article 4 of the Directive in respect in particular of the species listed in Annex I (see Lappel Bank, paragraph 23). If Member States could escape the obligation to classify SPAs if they considered that other special conservation measures were sufficient to ensure survival and reproduction of the species mentioned in Annex I, the objective of creating a coherent network of SPAs, referred to in Article 4(3) of the Directive, might not be achieved. The economic requirements mentioned in Article 2 of the Directive might not be taken into account when selecting an SPA and defining its boundaries (see Lappel Bank, paragraph 27). Moreover, while the Member States had a certain margin of discretion in the choice of SPAs, the classification of those areas was nevertheless subject to certain ornithological criteria determined by the Directive (see Santoña Marshes, paragraph 26). It followed that the Member States' margin of discretion in choosing the most suitable territories for classification as SPAs did not concern the appropriateness of classifying as SPAs the territories which appeared the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I to the Directive. Consequently, Member States were obliged to classify as SPAs all the sites which, applying ornithological criteria, appeared to be the most suitable for conservation of the species in question. Thus, where it appeared that a Member State had classified as SPAs sites the number and total area of which were manifestly less than the number and total area of the sites considered to be the most suitable for conservation of the species in question, it would be possible to find that that Member State had failed to fulfil its obligation under Article 4(1) of the Directive. Consequently, the Netherlands Government's argument that the Commission must establish, territory by territory, specific infringements of that provision could not be accepted. Paragraphs 65 to 70 of the judgment were in these terms:
"65. Third, it should be observed, that the Netherlands Government, while not questioning the scientific reliability of IBA 89, contends that the application of the criteria on which that report is based cannot, in view of their general character, lead to unequivocal results as regards the classification of SPAs. It has maintained that, although it applied the same criteria as those on which IBA 89 is based, it arrived in its inventory of sites potentially classifiable as SPAs at a result which was very different from that indicated by that report. At the hearing, however, it admitted that its criteria differed from those used in IBA 89.
66. In that regard, it is significant that the Kingdom of the Netherlands has to this very day failed to produce a single document from the national procedure for classifying SPAs which indicates the criteria which governed the designation of SPAs in that Member State.
67. Moreover, throughout the pre-litigation procedure and also in its defence and rejoinder, it stressed that when designating SPAs it had, under Article 2 of the Directive, to take account of economic and recreational requirements. That approach is inconsistent with the Netherlands Government's assertion that it applied exclusively ornithological criteria when designating SPAs.
68. In this connection, it must be pointed out that IBA 89 draws up an inventory of areas which are of great importance for the conservation of wild birds in the community. That inventory was prepared for the competent directorate-general of the Commission by the Eurogroup for the Conservation of Birds and Habitats in conjunction with the International Council of Bird Preservation and in cooperation with Commission experts.
69. In the circumstances, IBA 89 has proved to be the only document containing scientific evidence making it possible to assess whether the defendant state has fulfilled its obligation to classify as SPAs the most suitable territories in number and area for conservation of the protected species. The situation would be different if the Kingdom of the Netherlands had produced scientific evidence in particular to show that the obligation in question could be fulfilled by classifying as SPAs territories whose number and total area were less than those resulting from IBA 89.
70. It follows that that inventory, although not legally binding on the Member States concerned, can, by reason of its acknowledged scientific value in the present case, be used by the Court as a basis of reference for assessing the extent to which the Kingdom of the Netherlands has complied with its obligation to classify SPAs."
I have summarised this judgment at some length, and have quoted this passage verbatim, in order to show why the Court rejected the arguments for the Kingdom of the Netherlands and based its decision on the sites listed in IBA 89. Nothing in the judgment appears to me to touch on the proposition advanced by counsel for the petitioners, let alone vouch it. The situation might have been different had the Netherlands Government provided information about the criteria which governed the designation of SPAs in the Netherlands and discussion had ensued about the validity of those criteria in light of the provisions of the Birds Directive as properly interpreted. That was not what happened, and indeed it appears that the Netherlands Government had not applied exclusively ornithological criteria when designating SPAs, by taking account of economic and recreational requirements.
I accept from these four decisions of the European Court of Justice that the delineation of the boundaries of an SPA must be determined by reference to ornithological criteria alone. But, as I have sought to emphasise, in each of them either the boundaries of the area or areas in question had already been determined, or there was no dispute as to where they should be drawn if regard was had to ornithological criteria alone. None of them was concerned with the present issue; in none of them was there any discussion of the question whether the discretion of Member States did or did not extend to boundary delineation; and still less did any of them decide that, as counsel submitted, Member States have no discretion in boundary delineation. It is therefore necessary in my opinion to return, in the absence of authority, to the language of each of the Birds and Habitats Directives to see whether there is any justification for the approach contended for by counsel for the petitioners.
At the outset, it was, as I understood it, common ground between the parties that the provisions of the Birds and Habitats Directives are so closely inter-related that they should be interpreted in such a way as to yield mutually consistent results. I accept that this is the correct approach. Thus the classification of "the most suitable territories in number and size" as SPAs under Article 4(1) of the Birds Directive may be regarded as requiring substantially the same approach as is required for the preparation of the list of "sites" under Article 4(1) of the Habitats Directive. The expression "territory" is not defined in the Birds Directive, but in its context it must, in my opinion, have the same meaning as the expression "site" in the Birds Directive, which by Article 1(j) is defined as meaning "a geographically defined area whose extent is clearly delineated". The taking of special conservation measures under Article 4(1) of the Birds Directive, in particular the classification of territories as SPAs, would be ineffective unless the boundaries of such territories were capable of ascertainment. Counsel for the petitioners submitted that a "geographically defined area" meant that the area in question was defined by reference to geographical features, that is to say by reference to natural boundaries, for example the upper tree-line. I reject this submission. In my opinion the definition requires that the boundaries be capable of being shown on a map, for example the map of each site which the Member State is obliged by Article 4(1) to send to the Commission, and of being ascertained on the ground by reference to the map. The submission by counsel for the petitioners appears to me to confuse "geographical" with "natural". No doubt there are instances where natural features are sufficiently clearly-defined to serve as boundaries, subject to assessment of their suitability for this purpose (though perhaps the upper tree-line is not sufficiently clearly defined for this purpose). But this consideration does not appear to me to affect the definition of "territory" or "site", as distinct from the application from either of these expressions.
In my opinion, on a proper construction of these expressions, a location (to use a neutral term) only becomes a "territory" or "site" for the purposes of the Directives once inter alia its boundaries have been established and therefore until its boundaries have been established, by reference to the criteria laid down in the Directives, it is not to be regarded as a "territory" or "site". Identification of the boundaries is an integral part of the identification of a "territory" or "site". I thus reject the two-stage approach contended for by counsel for the petitioners. No doubt, in many instances, it is already well-known and generally accepted that there is a location to which it is appropriate to direct attention for the purposes of the Directives: but that fact does not, of itself, make the location a "territory" or "site". So, to direct attention to the Cairngorms does not, of itself, make the Cairngorms a "territory" or "site". Before that can happen there requires to be a process of evaluation. Article 4(1) of the Birds Directive expressly provides that trends and variations in population levels of the species referred to shall be taken into account as a background for "evaluations". There then follows the provision that Member State shall classify in particular "the most suitable territories in number and size" as SPAs "for the conservation of these species, taking into account their protection requirements ..." For reasons which I have already stated, it appears to me that to determine a "territory" as "most suitable" necessarily involves determination of its boundaries, so that the process of evaluation involved in identification of a territory as "most suitable" applies ipso facto to the determination of its boundaries. This is reinforced by the reference to "size", which in turn depends on the situation of boundaries, and by the requirement to take into account the protection requirements of the species in question. A discretion thus requires to be exercised throughout, as much in the determination of boundaries as in other respects. This is limited only by the requirement, recognised in the cases referred to by counsel for the petitioners, that the exercise of the discretion must be governed by reference to ornithological criteria alone.
The Habitats Directive contains provisions which point even more clearly to this view. I have already commented on the definition of "site". Article 4(1) requires each Member State to propose a list of sites on the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information. Each of the site assessment criteria set out in Annex III (Stage 1) A and B appears to me to involve a process of evaluation, as part of which a determination requires to be made as to where the boundaries should be drawn in order to identify a site in respect of which these criteria are satisfied. The same applies to the "relevant scientific information" referred to in Article 4(1). Provided that it is based on these criteria and this information, there is in my opinion a discretion to be exercised in identifying the boundaries of the site as an integral part of the process of identifying the site itself.
Counsel for the petitioners concentrated in his submissions on the range of the dotterel and on habitats found on the high ground of the Cairngorms, the boundaries of which, he argued, could be drawn in such a way as to include in particular area F. While this approach no doubt suited the petitioners' case in the present proceedings, it tended to obscure the complexity of the natural world. The proper interpretation of the Directives must, as I see it, allow for this complexity. In any general location, as in the Cairngorms, there may be several of each of the bird species in Annex I to the Birds Directive and the natural habitat types in Annex I and the species in Annex II to the Habitats Directive. The petitioners' approach would require that boundaries be drawn so as to include all of these species and habitats, regardless of the size of the territory or site that would result, and regardless of the feasibility of securing its conservation. Not only does this approach appear to me to produce impracticable results, it is in any event inconsistent with a number of express provisions of the Habitats Directive in particular. Article 4(1) of that Directive contains provisions that for animal and aquatic species which range over wide areas, the sites are related to factors essential to their life and reproduction. I can see no reason of policy to enable sites to be so restricted in the case of species ranging over wide areas, while permitting no restriction at all in the case of species with less wide ranges. Moreover, the Birds Directive Annex III site assessment criteria are all expressed in relative terms, requiring a qualitative approach similar to that required by the less specific provisions of Article 4(1) of the Birds Directive. These criteria include the degree of representativity of the natural habitat type in the site, and the size and density of the population of the species present on the site in relation to the populations present within national territory. In my opinion representativity of the relevant bird species in "the most suitable territories" must also be a factor of which account requires to be taken for the purposes of Article 4(1) of the Birds Directive. If the intention in framing either Directive had been to produce the results contended for by counsel for the petitioners, no doubt express provisions to that effect could have been framed. As counsel for SNH pointed out, the decisions of the European Court of Justice to which reference has been made recognised that in the exercise by Member States of their discretion with regard to ornithological criteria, what requires to be carried out is a complex and sophisticated scientific exercise. It is not, in my opinion, part of that exercise that all the contiguous or linked qualifying habitats or species populations must be included. I therefore reject the construction advanced by counsel for the petitioners.
(2) The relevancy of the petitioners' case on the boundary issue against SNH and The Secretary of State
The petitioners' case on the boundary issue against SNH and The Secretary of State was principally based on the interpretation of the relevant provisions on the Birds and Habitats Directives which I have rejected. In his first speech, counsel for the petitioners appeared to argue that it was in any event Wednesbury unreasonable for the boundaries of the Cairngorms pSPA and cSAC to have been drawn where they were, but in his second speech he expressly stated that this was not a case concerning Wednesbury unreasonableness, so I need say no more about this.
During the course of the hearing I was taken through the Watson report and the SNH paper dated 6 November 1997, but I see no need, given the way in which the argument for the petitioners was developed, to discuss these documents in any detail. It was not suggested that, in general terms, if SNH was correct in its interpretation of the relevant provisions of the Directives, it had failed properly to apply the provisions as so interpreted in exercising its discretion in the determination of where the boundaries should be drawn. The Watson report and the SNH paper show differences of opinion between their respective authors. Such differences, however, relate to the merits rather than the legality of the basis upon which SNH has decided to advise the Secretary of State, and are thus not for me to resolve. What they demonstrate is the complexity of the exercise which SNH has required to undertake, and this is not a situation in which on the basis of scientific criteria there is an incontrovertible case for inclusion of the skiing area within the boundaries. This is not therefore a case of the kind which was considered by the European Court of Justice in the four cases referred to.
Counsel for the petitioners did, however, make a number of further points in support of an argument to the effect that SNH had not properly exercised its discretion. The first of these points related to the way in which SNH had taken account of the boundaries of SSSIs. As I have previously explained, the boundary of the Cairngorms pSPA and cSAC follows the outer boundary of four contiguous SSSIs, with the exception of areas B and C (and subject to reconsideration of area C in respect of the cSAC). This may be related to Government policy, as set out in paragraph 17 of Circular 6/1995:
"The Government will not propose to the European Commission any land-based sites which have not been notified and confirmed as sites of special scientific interest (SSSIs). Similarly, no land-based site will be classified by the Secretary of State as a SPA under the Birds Directive until it has been notified and confirmed as a SSSI."
Counsel for the petitioners submitted that this was the wrong approach. The boundaries of pSPA or cSAC required to be considered of new, and the use of SSSIs as a starting point coloured the mind in drawing boundaries and led to errors. Such use fettered the exercise of the discretion in drawing the boundaries for the pSPA or cSAC, because the criteria for notification of SSSIs were different from those applicable to European sites. In my opinion these submissions are unsound. Counsel for the petitioners did not refer to the relevant provisions of the Wildlife and Countryside Act 1981, in particular section 28, which provides a procedure for notification as SSSIs of those areas of land which are of special interest by reason of any of their flora, fauna, or geological or physiographical features. Once notified, an SSSI is, under further provisions of the Act, subject to a protective regime. While the criteria for the establishment of SSSIs are by no means identical with those for SPAs or SACs, there is no conflict between them. Counsel for the petitioners did not criticise the policy set out in paragraph 17 of Circular 6/1995 as such, so I can proceed upon the basis that it is to be regarded as sound. As counsel for SNH pointed, the 1994 regulations provide by regulation 3(2) that inter alios the Secretary of State and SNH are required to exercise their functions under the enactments relating to nature conservation, including sections 28 to 38 of the Wildlife and Countryside Act 1981 (which relate to SSSIs) so as to secure compliance with the requirements of the Habitats Directive. In light of these considerations, I can see no basis for regarding as unlawful the use of existing SSSIs in the manner criticised by counsel for the petitioners. No doubt many areas which would qualify as SPAs and SACs are already, in general terms, covered by SSSIs, in respect of which scientific work has already been undertaken. The boundaries of an existing SSSI may, or may not, on further consideration, be appropriate to serve also as the boundaries of an SPA or SAC, but I can see no reason to question the taking of the boundaries of an existing SSSI as an aid to deciding in due course, along with any other relevant considerations, where the boundary of the European site should be drawn. Provided that there is scope for altering the boundary of the SSSI, as there clearly must be, I do not see how this can be regarded as a fettering of the discretion to be exercised in deciding where the boundary of the European site should be.
Secondly, counsel for the petitioners drew attention to passages in various documents which indicated the view which SNH had taken of the skiing facilities in area F. For example, a letter to WWF dated 16 May 1997 by the Chief Executive of SNH included a statement that "the existence of the skiing facility and its associated activity and the influence that this has upon other forms of recreation remains, in our view, the major controlling factor ...". Counsel submitted, under reference to Lappel Bank, that these passages demonstrated that SNH had unlawfully taken account of skiing "in a recreational and economic way". I do not accept this. It seems quite clear to me that SNH have taken account, as part of the process of scientific assessment, of the presence of skiing facilities and of their effects on the local habitats and species. An activity such as skiing obviously has recreational and economic aspects, but it also has aspects which are of direct relevance for a scientific assessment of the location in which it is carried out, and I do not see how the existing skiing facilities in area F could have been ignored. Indeed, to have ignored them would have been to fail to perform the exercise on a properly scientific basis.
Counsel for the petitioners also founded on SNH's change of position about area C, which had not been included in the cSAC in 1994 but in respect of which a contrary decision was taken in November 1997. Counsel submitted that this demonstrated a recognition that there had been no justification for its exclusion in the first place, and this cast a doubt on the justification for the exclusion of other areas, particularly area F. I do not agree with this. The SNH paper dated 6 November 1997 reconsidered the scientific information on the basis of which the boundaries had originally been drawn in light of the Watson report and up-to-date scientific information, and recommended that the boundaries should remain the same, apart from area C, in respect of which it said:
"The decision to exclude Area C in 1994 was fully supported by scientific opinion. ... The area is judged to be recovering from previous damage and contains representative qualifying habitats in generally good condition."
In light of this the Board of SNH decided to recommend to the Secretary of State that area C be included in the cSAC, subject to the necessary procedures. This decision appears to me therefore to have been taken on the basis of up-to-date scientific evidence of recovery in area C, and it thus has no bearing on the lawfulness of decisions about other areas.
Finally, counsel for the petitioners submitted that SNH and the Secretary of State had acted unlawfully in omitting any reference to snow bunting in the citation for the Cairngorms SPA which was designated on 25 September 1997. He submitted that this had taken place following political changes in the European Union, and was accordingly unlawful; and that the consequent exclusion of area B from the SPA was also unlawful. He addressed me on the merits of the inclusion of snow bunting in the SPA citation and the consequent inclusion of area B in the SPA.
Counsel for SNH pointed out that snow bunting are not an Annex I species. The snow bunting was locally self sustaining in the Cairngorms and if a site were to be chosen to assist migratory snow buntings it would not be in the Cairngorms. The accession of Sweden and Finland to the European Union had reduced the proportion of the United Kingdom's snow bunting population in relation to that of the European Union. Counsel addressed me further on differences of opinion about snow bunting in the Watson report and in SNH's own research.
I have already mentioned, in the course of describing the history of events, the context in which the decision was taken to remove area B from the pSPA on 1 March 1994. The bird species under consideration at that time was the dotterel, which is an Annex I species. The submissions about the snow bunting which I have summarised above simply demonstrate differences of opinion about the scientific information relating to the snow bunting in the Cairngorms and perhaps as to whether the snow bunting should become an Annex I species. Such differences of opinion do not in my view affect the lawfulness of the omission of area B from the Cairngorms SPA.
For all these reasons I am satisfied that the petitioners' case on the boundary issue against SNH and the Secretary of State is irrelevant.
(3) The relevancy of the petitioners' case on the boundary issue against HC, HIE and CCC
The petitioners' case against HC, HIE and CCC on the boundary issue was predicated on the construction of the provisions of the Birds and Habitats Directives which I have rejected, and strikingly little was said by counsel for the petitioners about the reasons why, if I accepted that construction, the planning permission (and associated documents) should be reduced. As I understood it, counsel's submission was that the planning permission had been granted on an improper factual basis as to the boundary of the Cairngorms pSPA and cSAC (see the passage from Wordie Property Co Ltd v Secretary of State for Scotland which I have quoted), and was accordingly vitiated. Even if I had favoured the petitioners' construction of the provisions of the Directives, I would have rejected this submission as unsound, for reasons which can be stated quite briefly.
As I have said, HC granted the planning permission under the provisions of the Town and Country Planning (Scotland) Act 1972, section 26(1) of which provides inter alia that "where an application is made to a planning authority for planning permission, that authority, in dealing with the application, shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." It was common ground between the parties, as I understood it, that Circular 6/1995, although not in itself legally binding on HC as the planning authority, was a "material consideration" within the meaning of section 26(1) to which HC was bound to have regard in dealing with CCCs application. I have already quoted paragraph 14 of the Circular, which includes the sentence:
"For the purpose of considering development proposals or other uses of land affecting them, potential SPAs and SACs should be treated in the same way as classified SPAs."
It was by virtue of this passage that the Cairngorms pSPA and cSAC fell to be treated by HC in the same way as if it had already been classified. Counsel for HC addressed me fully with a view to demonstrating that, apart from the Circular, there was no present obligation on HC to treat an unclassified site as if it had already been classified, but since counsel for the petitioners based his argument on the Circular alone I need not examine this point further. Given that by virtue of the Circular, and the Circular alone, HC was obliged to treat the Cairngorms pSPA and cSAC in the same way as a classified SPA, the difficulty for the petitioners becomes obvious. This is that to treat the pSPA and cSAC in this way necessarily involved so treating the area in question as an area enclosed by the proposed boundaries. No doubt there might be scope for subsequent alteration of the proposed boundaries, but that does not affect the proposition that to treat a pSPA or cSAC in the same way as a classified SPA must necessarily involve treating it as having its boundary as then proposed, not as it might be at some future time. Counsel for the petitioners submitted in terms, at one stage, that under Circular 6/1995 HC "were bound to have regard to the boundaries as promulgated by the Government", and that if HC had had regard to any other boundary in the planning process, then CCC could have challenged it on the ground that HC had had regard to an irrelevant matter. Notwithstanding this, counsel also submitted that if in appropriate proceedings it was held that the area in respect of which planning permission had been granted should have been within a European site, then one could return to the planning authority to say that their decision proceeded upon an incorrect material fact and so should be reduced. Counsel did not, however, refer to any provision which would authorise a planning authority to proceed in this manner; and in any event, as I have said, the facts as they existed at the time when planning permission was granted included the boundaries as then proposed. It appears to me to be erroneous to argue that a subsequent change of view about where the boundaries should be drawn affects the factual position of which HC were not only entitled but bound to take account at the material time. I accordingly would have regarded the petitioners' case on the boundary issue against HC, HIE and CCC as being in any event irrelevant.
(4) Whether the petitioners' case against HC, HIE and CCC on the boundary issue is barred by mora
HC, HIE and CCC have tabled pleas-in-law to the effect that the petitioners' case against them on the boundary issue is barred by mora. Given the views I have formed about the interpretation of the relevant provisions of the Birds Directive and the Habitats Directive, and in any event about the relevancy of the petitioners' case on the boundary issue against HC, HIE and CCC, it is not necessary for me to decide whether to give effect to the pleas of mora. Nevertheless I propose to give an indication of the manner in which I would have disposed of these pleas had it been necessary for me to do so.
The arguments which were addressed to me in this connection were of labyrinthine complexity. After much thought I have decided that it will serve no useful purpose to attempt to repeat them here, and I propose to concentrate on their main features. In narrating the history of events I have commented from time to time on the fact that neither petitioner put directly to HC the argument that the boundaries of the Cairngorms pSPA and cSAC should have been drawn in such a way as, at least, to include the skiing area, with obvious consequences for the consideration of CCC's planning application. No suggestion was made by either petitioner that the planning process should be delayed while the matter was resolved by SNH and the Secretary of State, or alternatively that the matter should be resolved by HC itself. On the contrary, RSPB in particular participated in a number of aspects of the planning process in terms which, either expressly or by implication, treated the pSPA and cSAC as having boundaries which did not include the skiing area. Meanwhile, as the petitioners must have known, CCC was incurring expense in connection with all the various procedures which I have described. Counsel for HIE and CCC told me that in the period between July 1995 and May 1997 expenditure of the order of £596,000 had been incurred.
A number of Scottish cases on mora were referred to by counsel. These were Assets Co v Bain (1904) 6F 692, Macnaughton v Macnaughton's Trustees 1953 S.C.387, Atherton v Strathclyde Regional Council 1995 S.L.T.557, Lardner v Renfrew District Council 1997 S.C.104 and Swan v Secretary of State for Scotland 1998 S.C.479. I take it from these cases, especially Swan, that mora is available as a plea in an application for judicial review. While its exact scope may remain undecided, it is a question of the circumstances in any particular case whether the plea should be sustained. This is reinforced, in my opinion, by reference to the English cases of Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 A.C.738 and R v Secretary of State for Trade & Industry ex parte Greenpeace Limited, 14 October 1997, unreported (QBD).
Counsel for the petitioners did not dispute that a plea of mora may be sustained in appropriate circumstances in an application for judicial review, but submitted that different considerations arose where European law was concerned. He relied in particular on case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV and Others v Gedeputeerde Staten van Zuid-Holland [1996] E.C.R.I-5403 ("Dutch Dykes"). In that case the European Court of Justice held inter alia that where under national law a court or tribunal hearing an action for the annulment of a decision approving a project must or may raise of its own motion pleas in law based on binding national rules which have not been put forward by the parties, it must, for matters within its jurisdiction, examine of its own motion whether the legislative or administrative authorities of the Member State have remained within the limits of their discretion under Articles 2(1) and 4(2) of the EA Directive, and take account thereof when examining the action for annulment; where that discretion has been exceeded and consequently the national provisions must be set aside in that respect, it is for the authorities of the Member State, according to their respective powers, to take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment. Counsel relied on this decision in support of an argument that if the boundaries of the pSPA and cSAC had been drawn in the wrong places, it was for HC to recognise that and to form its own view as to where the boundaries should be drawn; and, in any event, that it was for this Court to do so. I do not regard this decision as having the far-reaching consequences contended for by counsel for the petitioners, and in any event I cannot see what scope there could be for applying it to the circumstances of the present case. It was not argued on behalf of the petitioners that the relevant Directives had not been implemented in United Kingdom law. The petitioners' case on the boundary issue concerned, as I see it, the application of the law as so implemented. As I have previously discussed, it was only by virtue of Circular 6/1995 that HC was obliged to treat the site as if it was already a European site, and it may be thought that this gave the site protection at an earlier date than was otherwise required. I cannot see what scope there can be for holding that HC came under a duty to consider whether the proposed boundaries should be altered. Counsel for the petitioners submitted at one point that it was premature of HC to have decided the planning application when it did. This submission reinforces the view which I have formed that if the petitioners wanted to put in issue whether the boundaries of the pSPA and cSAC should be drawn so as to include the skiing area, and wanted the planning application not to be disposed of until this issue had been resolved, it was for them to make a suitable intervention in the planning process. The fact that they have not done so and allowed the process to proceed, with the consequences I have already mentioned, appears to me to amount to mora, and if necessary I would have sustained the pleas-in-law to that effect.
The Assessment Issue
Counsel for the petitioners presented his submissions on the assessment issue on the assumption that the boundary of the Cairngorms cSAC (and pSPA) had been correctly drawn as at the date when planning permission was granted to CCC, so that the funicular railway would be constructed outwith that boundary. Counsel submitted, under reference to the planning permission, the section 50 agreement and the draft VMP annexed thereto, that it was clear that neither SNH nor HC could have ascertained, as they were obliged to do, that the project would not adversely affect the integrity of the site. Counsel relied, in support of this submission, on Article 6(3) of the Habitats Directive (which I have quoted), both as a provision of that Directive and as substituted in Article 4(4) of the Birds Directive by Article 7 of the Habitats Directive, and on regulation 48(5) of the 1994 regulations. Although at times counsel appeared to rely primarily upon the provisions of Article 6(3) of the Habitats Directive in preference to those of regulation 48(5),as I have previously said he expressly accepted that the 1994 regulations implemented the Habitats Directive and advanced no submission to the effect that the regulations could not be construed in a manner consistent with the Directive. This being so, no question appears to me to arise for present purposes as to whether the Directive has direct effect, and reference to the Directive is confined to using it as an aid to construction and as a means of considering the effect of the regulations. Regulation 48 provides inter alia as follows:
"(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which -
(a) is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of the site, shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation shall provide such information as the competent authority may reasonably require for the purposes of the assessment.
(3) The competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.
(4) They shall also, if they consider it appropriate, take the opinion of the general public; and if they do so, they shall take such steps for that purpose as they consider appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site.
(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
Regulation 54(2) provides inter alia that regulations 48 and 49 apply in Scotland in relation to granting planning permission on an application under Part III of the Town and Country Planning (Scotland) Act 1972. In addition, regulation 3(4) provides that every competent authority in the exercise of any of their functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.
Regulation 49, which is referred to in regulation 48(5), contains provisions authorising agreement to a plan or project, notwithstanding a negative assessment for the site, for imperative reasons of overriding public interest, but since there was no negative assessment of the implications for the site in the present case I do not think it necessary to quote the provisions of regulation 49 more fully. The expression "European site" is defined by regulation 10(1) as meaning inter alia an SAC or an area classified pursuant to Article 4(1) or (2) of the Birds Directive (ie. an SPA). In view of the terms of paragraph 14 of Circular 6/1995, and for reasons which I have previously discussed, it was common ground between the parties that the site fell to be treated in the same way as a European site within the meaning of the 1994 regulations. It was also common ground between the parties that the project was likely to have a significant effect on the site, and accordingly an appropriate assessment of the implications for the site in view of its conservation objectives required to be made by the competent authority or authorities in terms of regulation 48(1). The expression "competent authority" is defined in regulation 6 as including any local authority, and there was no dispute that HC was a competent authority within the meaning of the regulations. Counsel for the petitioners advanced his submission, as I understood it, on the basis that SNH was also a competent authority within the meaning of the regulations but, as counsel for SNH pointed out, this is not correct. SNH is a "nature conservation body" as defined by regulation 4, and is accordingly "the appropriate nature conservation body" in relation to Scotland in terms of that regulation. Counsel for SNH referred to section 1 of and paragraph 1 of Schedule 1 to the Natural Heritage (Scotland) Act 1991, under which SNH is constituted. In light of these provisions, it appears to me to be clear that SNH is "the appropriate nature conservation body" for the purposes of regulation 48(3), and thus not a competent authority for the purposes of regulation 48. The general functions of SNH under section 2 of the 1991 Act include the provision of advice about the natural heritage. By regulation 3(2) of the 1994 regulations SNH is required to exercise its functions under the enactments relating to nature conservation, including section 2 of the 1991 Act and the 1994 regulations, so as to secure compliance with the requirements of the Habitats Directive. Counsel for SNH informed me that SNH accepted that in advising the Secretary of State it should not give advice which would result, if followed, in a breach of the Habitats Directive or the 1994 regulations. In the result, therefore, it was not in dispute that SNH and HC were subject to similar duties for the purposes of regulation 48.
The assessment issue thus turns on the proper interpretation of regulation 48 and its application as so interpreted to the circumstances of the present case. Counsel for the petitioners explained that the proper assessment of the impact of the project on the site had been at the heart of RSPB's objections to HC and that one of the main reasons for maintaining these objections was that RSPB had not been made a party to the section 50 agreement and draft VMP. Drafts of heads of agreement for the section 50 agreement, up to the third draft dated 21 February 1996, had made provision for RSPB to be a party to the agreement as owner of adjoining land. The fourth draft of heads of agreement, dated 3 April 1996, however, no longer made provision for RSPB to be a party to the agreement. While this matter is of no direct relevance, beyond explaining RSPB's motivation, I would record that the comment attached to the relevant paragraph of the fourth draft of heads of agreement states:
"In view of the proposed amendments by CCC to the [VMP] involving a closed system at the Ptarmigan and a charging scheme for the Coire Cas car park, it is thought that it is no longer necessary to join RSPB as a party to the agreement. Instead, they and Moray Council, as planning authority for the adjoining land, will be consulted by HC and SNH from time to time about the implications of the development on the adjoining land."
Counsel did not suggest that the section 50 agreement was invalid because RSPB was not a party to it, so that the situation seems to me to be no different from what it would have been had there never been a proposal that RSPB be a party.
Counsel for the petitioners submitted that the requirement in regulation 48(5) of the 1994 regulations, which reflected the provisions of Article 6(3) of the Habitats Directive, that "the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site", made it clear that planning permission could only be granted after that ascertainment had been made. Accordingly, conditional planning permission could not be granted for a project which was likely to have a significant effect on a European site. Moreover, the ascertainment required to be to the standard of an absolute guarantee of a legal certainty that the project would not adversely affect the integrity of the site. Counsel submitted that the ascertainment to that standard required to take place before the authority agreed to the project, not before development took place. This recognised the reality of a commercial situation, because if permission had been given for a development, or development had commenced, it was more difficult to impose a veto at a later stage. As a result uncertainty could be avoided.
In support of his submission that the standard required was that of an absolute guarantee, counsel for the petitioners referred to four decisions of the European Court of Justice. The first of these cases was case No. C-435/92 Association pour la Protection des Animaux Sauvages and Others v Préfet de Maine-et-Loire & Préfet de la Loire-Atlantique [1994] ECR I-67. In that case the Court held that pursuant to Article 7(4) of the Birds Directive, the closing date for the hunting of migratory birds and water fowl must be fixed in accordance with a method which guarantees complete protection of those species during the period of pre-mating migration. Methods whose object or effect is to allow a certain percentage of the birds of a species to escape such protection, such as those consisting in fixing the closing date for hunting by reference to the period during which migratory activity reaches its highest level, or those taking into account the moment at which a certain percentage of birds have started to migrate, or those consisting in ascertaining the average date of the commencement of pre-mating migration, accordingly do not comply with that provision. It is incompatible with the third sentence of Article 7(4) of the Directive, concerning migratory species in particular, for a Member State to fix closing dates for the hunting season which vary according to the species of bird, unless the Member State concerned can adduce evidence based on scientific and technical data relevant to each individual case, that staggering the closing dates for hunting does not impede the complete protection of the species of bird liable to be affected by such staggering. The fixing of closing dates which vary between the different parts of the territory of a Member State is compatible with the Directive on condition that complete protection of the species is guaranteed. If the power to fix the closing date for the hunting of migratory birds is delegated to subordinate authorities, the provisions which confer that power must ensure that the closing date can be fixed only in such a way as to make possible complete protection of the species during pre-mating migration. Counsel referred to a number of passages in the judgment which were reflected in the summary which I have quoted, and relied in particular on the words "guarantees complete protection".
Counsel next referred to case C-157/89 Commission of the European Communities v Italian Republic [1991] ECR I-57, in which the Court held that the second and third sentences of Article 7(4) of the Birds Directive are designed to secure a complete system of protection against hunting activities in periods during which the survival of wild birds is particularly under threat, and that to delimit the periods in which hunting is prohibited in such a way that such protection is ensured only for the majority of birds of a given species, as determined by average reproductive cycles and migratory movements, is incompatible with the objectives of the Directive. The Court also held that it would be contrary to the principle of legal safety if a Member State could rely on the regional authorities' power to issue regulations in order to justify national legislation which does not comply with the prohibitions laid down in a Directive. Counsel relied in particular on the phrase "complete system of protection".
Thirdly, counsel referred to case C-262/85 Commission of the European Communities v Italian Republic [1987] E.C.R. 3073, in which the Court held that the transposition of a Directive into national law does not necessarily require the provisions of the Directive to be enacted in precisely the same words in a specific, express legal provision of national law; a general legal context may be sufficient if it actually ensures the full application of the Directive in a sufficiently clear and precise manner. However, a faithful transposition becomes particularly important in a case such as the transposition of the Birds Directive in which the management of the common heritage is entrusted to the Member States in their respective territories. Counsel referred in particular to the use of the word "guarantee" in a passage of the judgment in which it was held that the essential elements of Article 9 of the Birds Directive had not been transposed completely, clearly and unequivocally into the Italian rules, with the result that there was no guarantee that the capture of certain species of birds would be limited to the strict minimum, that the period of capture would not coincide unnecessarily with periods in which the Directive aimed to provide particular protection or that the means, arrangements or methods for capture were not large-scale, non-selective or capable of causing the local disappearance of a species.
The fourth case to which counsel referred was case C-10/96, Ligue Royale Belge pour la Protection des Oiseaux ASBL and Another v Région Wallonne [1996] ECR I-6775. In that case the Court held inter alia that Article 9(1)(c) of the Birds Directive, under which Member States may, on condition that there is no other satisfactory solution, derogate from the prohibition of killing or capturing protected species, must be interpreted as meaning that a Member State may not, on a decreasing basis and for a limited period, authorise the capture of certain protected species in order to enable bird fanciers to stock their aviaries, where breeding and reproduction of those species in captivity are possible but are not yet practicable on a large scale by reason of the fact that many fanciers would be compelled to alter their installations and change their habits. It is only if it is established that, were it not for the capture of birds in the wild, breeding and reproduction of protected species in captivity could not prosper that this alternative could not be regarded as constituting a satisfactory solution within the meaning of that provision.
Counsel for the petitioners submitted that these cases demonstrated that the European Court of Justice interpreted the relevant provisions of the Birds Directive as requiring an absolute guarantee of protection, with no uncertainty. This was the standard that had previously been applied by SNH. In a press release dated 5 March 1996, explaining the decision taken by the SNH Board on that date to maintain its objection to the planning application, SNH stated that it "did not feel that the proposed visitor management plan and its associated legal agreements could provide the categorical assurance that damage would not occur, which the [Birds and Habitats] Directives and the regulations approved by Parliament demand." To leave a determination to an administrative discretion did not comply with the requirements of either Directive. Any agreement entered into must provide legal certainty before the project was approved. Although the cases referred to by counsel were concerned with provisions of the Birds Directive, the same approach in his submission was applicable to the provisions of the Habitats Directive, particularly in view of the substitution of provisions of Article 6 of the Habitats Directive in Article 4 of the Birds Directive. It could not have been the intention that a lower level of protection should apply to habitats than to species of birds. The language of the relevant provisions of Article 6 was mandatory and excluded any element of discretion in the degree of protection to be afforded to a site once that site had been designated, and a candidate site attracted the same level of protection under Circular 6/1995. These provisions were comparable to the mandatory provisions of the Birds Directive which had been discussed in the cases to which counsel had referred.
Turning to the planning permission, the section 50 agreement and the draft VMP annexed thereto counsel submitted that neither SNH nor HC could have been satisfied at the date that planning permission was granted that the funicular project would not adversely affect the integrity of the site. While the construction of the funicular railway in itself would not produce an adverse affect, the large number of visitors who would use it every year would have such an effect by spreading outwards into the site. In considering the impact of the project it was necessary to look at its proposed use as well as its construction. The power of veto conferred on SNH by the documents was effectively worthless because of the pressures that would be exerted on SNH not to exercise its veto after the railway had been constructed. Counsel referred to Condition 27 of the planning permission, which I have previously quoted, and submitted that if a base line survey was required there could not have been ascertainment to the necessary standard that there would be no adverse impact. Counsel also referred to Condition 28, which again I have previously quoted, and submitted that it was impossible to be certain, until a final VMP had been agreed, that there would be no adverse effect from visitors who used the railway. Until the final version of the VMP had been agreed, there was not really a plan or project which could be approved.
Counsel then turned to the provisions of the section 50 agreement. Clause (FIRST) provides:
"The principal purpose of this Agreement is to ensure that the Development proposed is managed in such a way that it will not adversely affect the integrity of the said European sites."
Counsel submitted that since this depended on good management it could not be said that the development would not produce an adverse effect. Clause (FIFTH) contains provisions relating to a base line survey similar to those in Condition 27 of the planning permission. Counsel again submitted that if a survey required to be carried out the information was not already available upon which it could be ascertained that there would be no adverse impact. Clause (SIXTH) contains inter alia these provisions:
"(a) Within nine months of the commencement of development on the Development Site, the Applicant [CCC] will, at its own cost, prepare in consultation with the Planning Authority, SNH and the Proprietor [HIE] and submit to the Planning Authority and SNH for their approval a final Visitor Management Plan (hereinafter referred to as "the VMP") for Non-Skiing Visitors and the use by the public of the funicular railway shall not commence until such approval has been given. The VMP will define the Applicant's objectives and its approach to visitor management. The Planning Authority and SNH will, within twelve weeks of the submission of the VMP for approval or such longer period as shall be agreed between the parties, notify the applicant in writing that they approve the VMP or, alternatively, that they do not approve the VMP for the reasons given in the notice. [...]
(e) The funicular railway shall not be brought into commercial use until such time as those obligations in the approved VMP which are to be implemented prior to that event have been carried out to the satisfaction of the Planning Authority and SNH;
(f) The Planning Authority and SNH agree that the draft VMP annexed and signed as relative to this agreement is indicative of the matters which they wish to see covered in the final VMP. The final VMP will, however, require greater detail and precision and the Planning Authority and SNH will require to be satisfied on these matters before giving their approval to the final VMP."
Counsel submitted that these provisions allowed the development to commence prior to the VMP being agreed and that the development could be completed before obligations in the VMP had been implemented. These provisions showed that there could not have been the necessary ascertainment at the time that planning permission was granted. Clause (EIGHTH) contains provisions relating to the preparation of an annual report on the impact of non-skiiing visitors using the car park and the funicular railway and on the effectiveness of the approved VMP in managing such visitors. Counsel submitted that this envisaged that the VMP might not be effective. Clause (NINTH) contains provisions allowing HC and SNH to require CCC to implement measures additional to or different from those stipulated in the approved VMP if information arising from the operation of the monitoring scheme (provided for by Clause SIXTH (b)) or from the annual reports indicated that such measures might be appropriate as a consequence of the impact of the development upon the integrity of the proposed European sites. Counsel submitted that this provision recognised that there might be an adverse impact, in which case there was no absolute guarantee that there would not be such an impact.
Clause (THIRTEENTH) provides a procedure in the event of disagreement between HC and SNH on matters requiring the agreement of both of them. Sub-Clause (c), after provision for notification to CCC and HIE and the provision of written statements, provides inter alia:
"(iii) Thereafter, the matter in issue will be referred within five weeks from the date of the said notification to a joint committee for consideration. The joint committee will comprise three members appointed by the Planning Authority and three members appointed by SNH. The quorum for the joint committee will be six. The decision of the joint committee on the matter will be final and binding on the Planning Authority and SNH. [...]
(iv) If SNH is of the opinion that the matter in issue concerns or is likely to concern the integrity of the said European Sites, their view on this shall be taken as conclusive and the joint committee shall be chaired by one of the three SNH members. In all other cases, the joint committee shall be chaired by one of the three Planning Authority members. In the event of an equality of votes on the matter in issue, the Chairman shall have a casting vote."
Counsel submitted that the three members appointed by SNH need not be members of the board of SNH and would not necessarily vote in accordance with SNH policy. In any event, all such procedure would take place in the future, and so SNH could not have been satisfied at the time that planning permission was granted that there would be no adverse effect on the site. Counsel made a similar point in relation to Clause (FOURTEENTH), which contains provisions for arbitration and Clause (EIGHTEENTH) which provides:
"Throughout this Agreement, wherever the Planning Authority and SNH are required to give their consent or approval to any action or are each required to exercise their discretion with regard to any of the conditions contained in this agreement, the Planning Authority and SNH undertakes not to act unreasonably in the sense in which that term was defined in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 and to act without any undue delay."
Counsel submitted that this meant that the agreement became entirely a matter of administrative discretion and was effectively devoid of legal certainty.
The draft VMP which was annexed to the section 50 agreement was the version dated January 1997. It arranged its contents under the following headings:
"1. Introduction
2. The Cairngorm Ski Area
3. Visitor Management Objectives
4. Approach to Visitor Management
5. Visitor Management Stage 1: The Marketing of Cairngorm
6. Visitor Management Stage 2: Approach to Ski Area
7. Visitor Management Stage 3: Traffic Management Scheme
8. Visitor Management Stage 4: Coire Cas Car Park
9. Visitor Management Stage 5: The Day Lodge
10. Visitor Management Stage 6: The Ptarmigan
11. Visitor Management Stage 7: Footpaths
12. Visitor Management Stage 8: Adjacent Areas
13. Overlap Periods
14. Health & Safety
15. Monitoring"
It also contained four appendices.
Although counsel for the petitioners examined the provisions of the draft VMP in some detail, I do not think it necessary to repeat that detail here. As I have said, the potential adverse impact on the Cairngorms pSPA and cSAC will arise from visitors who enter the site from the skiing area. The draft VMP provides that during the summer months a closed system will be operated, so that visitors who reach the Ptarmigan by way of the funicular railway will not be able to leave the building (except to go outside on the viewing terrace) and will be obliged to use the funicular railway for the return journey. It will however be possible for visitors to use vehicles to reach the car park and then to walk uphill, eventually reaching the site. Under the draft VMP it is proposed to impose a system of charges for car parking which will not put off short-stay visitors who wish to use the facilities within the skiing area, but which will, by virtue of high charges, discourage those who would wish to park for longer periods. Parking restrictions along the whole of the access road to the car park from Glenmore would prevent avoidance of car parking charges by parking on road verges. Various other means would be used to dissuade visitors from walking from the car park into the European site. During the skiing season, when persons who arrived at the Ptarmigan by way of the funicular railway would be allowed to leave the building, measures would be adopted to dissuade and, if necessary, prohibit persons other than downhill skiers from proceeding into the European site from the Ptarmigan. This summary is sufficient to give content to the submission of counsel for the petitioners, which was that the draft VMP provided for no absolute controls which would prevent visitors from entering the European site, and without such controls SNH was not entitled to enter into the section 50 agreement.
Counsel also referred to a number of passages in the report prepared by the Director of Planning of HRC for the special Planning Committee meeting on 4 March 1996. Counsel submitted that these passages demonstrated an awareness that the proposals then under consideration could not provide an absolute guarantee that there would be no adverse effect on the European site. The report however contained the following passage in paragraph 10.4:
"Subject to the applicants providing some further detail to SNH on the visitor impact controls at Coire Cas car park, I am satisfied that the VMP and agreement, together with planning conditions, will not result in the funicular development having an adverse effect on the European sites."
The issue therefore, in my view, requires to be discussed in the context of the provisions of the planning permission, the section 50 agreement and the draft VMP annexed thereto.
Counsel summarised his submissions in this way: firstly, as matters stood in March 1997, neither SNH or HC could have made the relevant assessment because the VMP was not yet in its final form; and, secondly, even if they were entitled to make the assessment in March 1997, no reasonable authority could have concluded on the information available that the project would not adversely affect the integrity of the European site. The uncertainty arising from the impact of large numbers of people meant that it was never possible to have the necessary guarantee in a situation of this kind. If the appropriate measures could not be put in place, planning permission should not have been granted.
Counsel for SNH, the role of which I have already discussed, submitted that regulation 48(5) did not require an absolute guarantee that the plan or project would not adversely affect the integrity of the European site. The four cases to which counsel for the petitioners had referred were concerned with the transposition of the Birds Directive into the law of the Member States in question and were accordingly irrelevant for present purposes. Unlike the position in each of those cases, SNH was bound under regulation 3(2) to exercise its functions so as to secure compliance with the requirements of the Habitats Directive. In giving advice, when consulted by HC as required by regulation 48(3), SNH was bound by the requirement imposed by regulation 3(2). Regulation 48(6) required the planning authority to have regard to inter alia any conditions or restrictions subject to which they proposed that planning permission should be given. The conditions imposed by the planning permission, the section 50 agreement and the draft VMP imposed real controls. The funicular could not be brought into use until the VMP had been finalised and implemented in terms of Clause (SIXTH) (e) of the section 50 agreement. Clause (NINTH) provides inter alia:
"(a) If information arising from the operation of the Monitoring Scheme or from the annual reports indicates to the Planning Authority and SNH that measures additional to or different from those stipulated in the approved VMP may be appropriate for the purposes of the Development as a consequence of the Development's impact upon the integrity of the proposed European sites ... they shall first consult with the applicant and the proprietor about such measures;
(b) If, following such consultation, the Planning Authority and SNH decide that measures additional to or different from those stipulated in the approved VMP are appropriate, such measures will be implemented by the applicant at its own cost and within such time and in such manner as determined by the Planning Authority and SNH and the VMP shall be altered accordingly, and the VMP as so altered shall become the approved VMP; ..."
Under Clause (ELEVENTH) the Planning Authority and SNH could require CCC to take steps to remedy any failure by CCC to implement or satisfactorily to implement any of its obligations under the section 50 agreement. Under Clause (THIRTEENTH)(c)(iv) SNH had a veto on any issue which it considered was likely to concern the integrity of the European sites. Under Clauses (FOURTEENTH)(a) and (EIGHTEENTH) the Planning Authority and SNH were the sole arbiters of the adequacy of any action taken by the developers and were constrained only by Wednesbury unreasonableness. Hence SNH had a "stranglehold". The section 50 agreement had not been easy to negotiate. It significantly curtailed a commercial enterprise. One should not underestimate the time and effort which SNH had put into the exercise, nor its determination to use its veto if need be. The planning authority had the information provided in the environmental statement and the addendum thereto, and SNH had, as could be seen from the Watson report, a vast amount of scientific information. No inference could be drawn from the requirement for a base line survey that the planning authority and SNH were not aware of the condition of the relevant area. There was an advantage in having left the VMP in draft, because it could be finalised in light of the precise details of the development as constructed, rather than subsequently amended. There was no basis for questioning the bona fides of SNH or the reasonableness of its judgment that the project would not have adversely affect the integrity of the European site. Counsel accepted that regulation 48(5) sets a high standard, but submitted that there could never be absolute certainty about events which lay in the future. The section 50 agreement and draft VMP did however provide as near legal and practical certainty as could be achieved. On a proper analysis what the petitioners wanted was that the law should provide that they as interested pressure groups were entitled to supervise all the details of the systems of control which the planning authority and SNH were empowered to put into place. This had nothing to do with legal certainty or with the reasonableness of the assessment made by the planning authority and SNH.
Counsel for HC adopted the submissions of counsel for SNH, and added further submissions of his own. He submitted that under regulation 48(5) the question whether or not there would be an adverse effect was a judgment of fact to be made by the planning authority and no relevant ground had been advanced upon which the Court was entitled to review HC's decision. As the history of events demonstrated, HC had made an assessment, which was not a negative assessment. Regulation 54(3) provides:
"Where regulations 48 and 49 apply, the competent authority may, if they consider that any adverse effects of the plan or project on the integrity of a European site would be avoided if the planning permission were subject to conditions or limitations, grant planning permission ... subject to those conditions or limitations."
Regulation 48(5) required to be taken along with regulation 48(6) and regulation 54(3). The question thus was whether, having regard to the manner in which it was proposed to carry out the plan or project and to any conditions or restrictions subject to which it was proposed to be carried out, or subject to which it was proposed that the permission should be given, the planning authority had ascertained that the plan or project would not adversely affect the integrity of the European site. The Director of Planning had reported that he was "satisfied that the VMP and agreement, together with planning conditions, will not result in the funicular development having an adverse effect on the European sites." There was no basis for the suggestion that the correct test was not applied. The controls imposed by the planning conditions and the section 50 agreement were intended to prevent adverse effects and it was a fallacy to suggest that the existence of the controls entailed that there would be adverse effects. The question whether the way in which the development would be operated would prevent adverse effects was a question of fact for the authority carrying out the assessment. It was speculation to suggest that controls would not be used. It had to be assumed that public authorities would comply with their duties. Counsel drew attention to the beneficial effects of the development, under reference to paragraphs 24 to 26 of the judgment of the Court in the Leybucht Dykes case, where there was discussion of offsetting ecological benefits. In the present case the benefits were that non-skiing summer visitors would be prevented from using the chairlift, as they did at present, to ascend to the plateau and from using the access road and the Coire Cas car park to gain vehicular access to near the edge of the European site and to walk into it. A key principle throughout the environmental assessment had been to limit visitor usage.
In my opinion the submissions of counsel for the petitioners on the assessment issue are ill-founded. As I have already pointed out, counsel did not seek to argue that the 1994 regulations did not effectively implement the relevant provisions of the Habitats Directive, so it is to the 1994 regulations that regard must primarily be had, and in particular regulation 48(5) thereof. In considering the provisions of that paragraph, I start with the expression "plan or project", which is not in itself defined in the regulations. Regulation 49(1) and (2) speak of it as something for which "consent, permission or other authorisation" is applied, and in my opinion this means that the plan or project is that which is the subject-matter of an application and can thus be identified by reference to the application. This appears to me to be consistent with the provisions of the 1988 regulations, and in particular regulation 6(2), which I shall discuss in due course. Thus in the present case the "plan or project" is as set out in CCC's application for planning permission. I therefore reject the suggestion which counsel for the petitioners made at one point that the "plan or project" included all the conditions to which it was made subject at the time when planning permission was granted. Next, what requires to be ascertained under regulation 48(5) is that the plan or project will not adversely affect "the integrity of the European site". This expression is not defined in the regulations, but in paragraph 2 of Appendix A to Annex D to Circular 6/1995 it is stated:
"The integrity of a site is the coherence of its ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats and/or the levels of populations of the species for which it was classified."
This appears to me to be an acceptable definition, and I adopt it. It is clear therefore from this definition that many inter-related factors require to be considered in deciding whether or not a plan or project will adversely affect the integrity of a European site. Although counsel for the petitioners laid great stress on the words "only after having ascertained", I do not accept that this means that there must be an absolute guarantee that the integrity of the site will not be adversely affected. The four decisions of the European Court of Justice on which he relied do not seem to me to be of any relevance. They were all concerned with situations in which the provisions of the Birds Directive had not been properly implemented in the legislation of the Member States in question, which is not the issue here. There never can be an absolute guarantee about what will happen in the future, and the most that can be expected of a planning authority, as a competent authority under the regulations, or of SNH, as the appropriate nature conversation body, is to identify the potential risks, so far as they may be reasonably foreseeable in light of such information as can reasonably be obtained, and to put in place a legally enforceable framework with a view to preventing these risks from materialising. It is for this very reason, in my opinion, that provision was made by regulations 48(6) and 54(3) for the use of conditions. It is noteworthy that counsel for the petitioners made no reference to these provisions, perhaps because of his predominant reliance on Article 6(3) of the Habitats Directive, which does not expressly refer to the use of conditions. Article 6(1) does, however, contemplate the use of management plans. Counsel did not argue that the use of conditions was not authorised by the Habitats Directive, and since he accepted that the 1994 regulations did implement the Habitats Directive I do not need to consider further the validity of the grant of planning permission subject to conditions, either suspensive or resolutive. Moreover, the 1994 regulations must have been framed with regard to the power of a planning authority to enter into an agreement under section 50 of the Town and Country Planning (Scotland) Act 1972 and of SNH to do so under section 49A of the Countryside (Scotland) Act 1972 (as inserted by section 9 of the Countryside (Scotland) Act 1981). Section 50 provides inter alia:
"(1) A planning authority may enter into an agreement with any person interested in land in their area ... for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement; and any such agreement may contain such incidental and consequential provisions ... as appear to the planning authority to be necessary or expedient for the purpose of the agreement."
Section 49(A) provides inter alia:
"(1) A planning authority or the commission [now SNH] may enter into agreements (to be known as 'management agreements') with any person having an interest in land to do, or to secure the doing of, whatever in the opinion of the parties to the agreement may be necessary to preserve or enhance the natural beauty of the countryside or to promote the enjoyment of the countryside by the public."
In these circumstances, I can find nothing in the section 50 agreement or the draft VMP for which there was no authority under regulations 48(6) and 54(3), and I reject the argument to the effect that SNH and HC were acting ultra vires in making the relevant ascertainment under reference to the section 50 agreement and draft VMP. I have already referred to the relevant provisions of these documents. These, in my opinion, are sufficient in law to enable SNH and HC to secure compliance with the relevant provisions of the Habitats Directive and the 1994 regulations. I am not impressed by the argument that these bodies might not enforce these provisions. It is of course theoretically possible that any condition may not be enforced, but there does not seem to me to be any special circumstance in the present case that takes it outside the realm of theory; and indeed regulation 3(2) and (4) would impose a specific duty to enforce any condition intended to secure compliance with the requirements of the Habitats Directive. From this point onwards, it appears to me to be a matter for the discretion of the body in question whether any particular condition is sufficient for its purpose, and the intervention of the Court is therefore confined to circumstances amounting to Wednesbury unreasonableness. Although counsel for the petitioners criticised the effectiveness of various provisions of the section 50 agreement and draft VMP, this was with a view to arguing that a conditional agreement was ultra vires, and he advanced no separate argument to the effect that it was Wednesbury unreasonable of either SNH or HC to enter into such an agreement. Nor did counsel argue that it was Wednesbury unreasonable for either body to take the view that, subject to the relevant conditions, the assessment of the implications for the site was not negative, within the meaning of regulation 49(1). The documentation makes it clear that there was not a negative assessment, so the provisions of regulation 49 have no application. In the end, the argument for the petitioners came down to no more than a demonstration of a difference of opinion between the petitioners on the one hand and SNH and HC on the other about the conclusions which should be drawn from the assessment. Such a difference of opinion does not entitle the Court to intervene in an application for judicial review. For these reasons therefore the case for the petitioners on the assessment issue is in my opinion irrelevant.
The Environmental Information Issue
Counsel for the petitioners submitted that HC acted unlawfully in not making the final draft of the section 50 agreement and the draft VMP annexed thereto available for public consultation before the section 50 agreement was entered into, that the decision to grant planning permission was consequently unlawful, and that the section 50 agreement and the planning permission should be reduced.
The statutory framework for public consultation on environmental issues is provided by the 1988 regulations which implemented the requirements of the EA Directive. Despite some indications to the contrary in his first speech, counsel for the petitioners in his second speech expressly accepted that the 1988 regulations implemented the Directive and advanced no submission to the effect that the regulations could not be construed in a manner consistent with the Directive. This being so, no question appears to me to arise in this case as to whether the Directive has direct effect, and reference to the Directive is confined to using it as an aid to construction and as a means of considering the effect of the regulations. Subject to this, the following provisions of the Directive appear to me to be relevant for this purpose.
The preamble to the Directive includes the following recital:
"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question; ..."
Article 2(1) provides:
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4."
Article 4 provides inter alia that projects of the classes listed in Annex II shall be made subject to an assessment in accordance with Articles 5 to 10, where Member States consider that their characteristics so require. Article 5(1) provides:
"In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex III inasmuch as:
(a) The Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected; ..."
Article 6(2) provides:
"Member States shall ensure that:
- any request for development consent and any information gathered pursuant to Article 5 are made available to the public,
- the public concerned is given the opportunity to express an opinion before the project is initiated."
Article 6(3) provides inter alia:
"The detailed arrangements for such information and consultation shall be determined by the Member States, which may in particular, depending on the particular characteristics of the projects or sites concerned:
... determine the manner in which the public is to be consulted, for example, by written submissions, by public enquiry, ..."
The 1988 regulations contain various expressions which are defined in regulation 4(1). These include "annex 2 application", which is defined as meaning an application for planning permission for the carrying out of development of any description mentioned in Schedule 2. It is not in dispute that the construction of the funicular railway would constitute development falling within Schedule 2, and accordingly that CCC's application for planning permission was an annex 2 application for the purposes of the 1988 regulations.
Regulation 6(1) provides that that regulation applies to an annex 2 application inter alia where the proposed development "shall be likely to have significant effects on the environment by virtue inter alia of its nature, size or location." It is not in dispute that the proposed development in the present case is likely to have such effects. Regulation 6(2) (as amended) provides inter alia:
"The planning authority ... shall not grant planning permission in respect of an application to which this regulation applies unless they have taken into consideration environmental information in respect of the proposed development and state in their decision that they have done so."
It is not in dispute that regulation 6 applied to CCC's application for planning permission and accordingly that HC were prohibited from granting planning permission in respect of the application unless they had taken environmental information in respect of the proposed development into consideration. The expression "environmental information" is defined in regulation 2 as meaning:
"(a) any environmental statement required to be provided under these regulations, (b) any representations made by any authority, body or person required by the regulations to be invited to make representations (or consulted), and (c) any representations duly made by any other person about the likely environmental affects of the proposed development".
The expression "environmental statement" is defined as meaning "such a statement as is described in Schedule 3". Schedule 3 provides inter alia:
"1. An environmental statement comprises a document or series of documents prepared by the applicant providing, for the purpose of taking into consideration environmental information in respect of a proposed development, the information specified in paragraph 2 (referred to in this Schedule as 'the specified information').
2. The specified information is -
(a) a description of the proposed development, comprising information about the site and the design and size or scale of the proposed development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects, direct and indirect, on the environment of the proposed development, explained by reference to its possible impact on -
A. human beings;
B. flora;
C. fauna;
D. soil;
E. water;
F. air;
G. climate;
H. the landscape;
I. the inter-action between any of the foregoing;
J. material assets;
K. the cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects; and
(e) a summary in non-technical language of the information specified above."
Paragraph 3 provides that the statement may include, by way of explanation or amplification of any specified information, further information on a number of other specified matters, and paragraph 4 requires the provision of a non-technical summary of such further information, where it is included. The format and contents of Schedule 3 are somewhat different from those of Annex III to the EA Directive which, it can be assumed, they were intended to implement, but it was not submitted on behalf of the petitioners that the differences are significant and for present purposes it is sufficient to refer to Schedule 3.
Regulation 16(1) provides:
"In an application to which regulation 6 applies, when the applicant ... submits an environmental statement he shall serve on any party who holds a notifiable interest in neighbouring land a notice in the form set out in Schedule 5 (or in a form substantially to the like effect) stating -
(a) that the environmental statement may be inspected in the office of the planning authority for the period of 4 weeks from the date of the said notice;
(b) the address at which copies of the environmental statement may be acquired;
(c) the cost of a copy of the environmental statement; and
(d) that representations may be made."
I need not repeat the terms of Schedule 5. Regulation 16(2) provides that the parties holding a notifiable interest in neighbouring land are inter alios the owners of the land. Regulation 16(5) provides:
"When an environmental statement is submitted, the planning authority or the Secretary of State, as the case may be, shall publish as soon as possible a notice (containing similar information to that required to be included in a notice served in accordance with paragraph (1)) in a newspaper circulating in the locality in which the neighbouring land is situated and in the Edinburgh Gazette."
Regulation 17 provides that where an environmental statement is provided in relation to an application for planning permission, the applicant shall ensure that a reasonable number of copies of the environmental statement are available at the address named in his notices under regulation 16 as the address at which copies may be obtained. Regulation 18(1) provides that where a planning authority receive an environmental statement relating to an application to which regulation 6 applies, they shall do various things, including "consult the authorities, bodies or persons mentioned in Schedule 4 about the environmental statement and inform them that they may make representations". Schedule 4 has no significance for present purposes.
Regulation 22(1) provides inter alia:
"[T]he planning authority, when dealing with an application ... in relation to which an environmental statement has been provided, may in writing require the applicant ... to provide such further information as may be specified to enable the application ... to be determined, or concerning any matter which is required to be dealt with in the environmental statement; and where in the opinion of the planning authority, ... -
(a) the applicant ... could (having regard in particular to current knowledge and methods of assessment) provide further information about any matter mentioned in paragraph 3 of Schedule 3; and
(b) that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development, they or he shall notify the applicant ... in writing and the applicant ... shall provide that further information."
Regulation 22(1A) (as added by amendment) provides:
"Where further information is requested in accordance with paragraph (1) ... regulations 17, 18 and 19 shall apply to the submission of such further information as they apply to the submission of an environmental statement subject to any necessary modifications and regulation 16 shall similarly apply subject to substitution of 'in Schedule 6' in place of 'in Schedule 5'."
I need not quote Schedule 6.
Scottish Office Circular No.13/1988 entitled "Environmental Assessment: Implementation of EC Directive: The Environmental Assessment (Scotland) Regulations 1988 ("Circular 13/1988") states in paragraph 7:
"It has been the Government's aim in implementing the requirements of the Directive to ensure that no unnecessary additional burdens are placed on either developers or authorities. The process of EA should not be imposed where it is not required by the Directive. For projects for which EA is necessary, there are often benefits to developers in designing the scheme if the assessment process is initiated at a sufficiently early stage, and particularly if consultations are undertaken with the planning authority and other interested bodies during the preparatory stages. To the extent that environmental statements present in a more systematic way information which would in any case have to be supplied by the developer, they may simplify the task of appraisal for the planning authority and enable swifter decisions to be reached. While such statements will need to comply with the requirements of the Directive, it is important that they should be prepared on a realistic basis and without undue elaboration; and that the additional costs imposed on developers by the requirement to provide information about environmental effects should be kept to a reasonable minimum."
In an earlier passage of this Opinion I have described the relevant procedural events, and I have also made reference to some of them in the course of my discussion of the boundary and assessment issues. Counsel for the petitioners advanced no criticism of the procedure which had been followed until the concluding stages, and accordingly it is sufficient if I merely recapitulate the earlier stages in outline. As summarised by HC in its pleadings, the operation of the funicular railway as a closed system was an option that was described in the environmental statement submitted by CCC with its application for planning permission. The application for planning permission was advertised by HRC on 2 and 8 September 1994 and a 28 day period for representations was allowed. Operation of the funicular railway as a closed system was an option that was also described in the addendum to the environmental statement of May 1995. This was advertised by HRC on 2 and 8 June 1995 and again a 28 day period for representations was allowed. Operation of the funicular railway as a closed system was an option that was again described in the draft VMP of January 1996. The management of the Coire Cas car park to minimise its use as a means of access to the proposed European sites was considered in the addendum and proposed in the draft VMP of January 1996. This draft VMP was formally submitted by CCC to HRC on 16 January 1996 and was advertised on 23 and 25 January. On 19 January 1996 all those who had previously made representations about the application were advised of that version by HRC and invited to make further representations by 12 February 1996. It arranged its contents under these headings:
"(1) Introduction
(2) The Cairngorm Ski Area
(3) Visitor Management Objectives
(4) Approach to Visitor Management
(5) Visitor Management Stage 1: The Marketing of Cairn Gorm
(6) Visitor Management Stage 2: Approach to Ski Area
(7) Visitor Management Stage 3: Coire Cas Car Park
(8) Visitor Management Stage 4: The Day Lodge
(9) Visitor Management Stage 5: The Ptarmigan
(10) Visitor Management Stage 6: The Summit Sub-Zone
(11) Visitor Management Stage 7: Footpaths
(12) Visitor Management Stage 8: Adjacent Areas
(13) Overlap periods
(14) Health & Safety
(15) Monitoring".
Thereafter on 4 March 1996 a public hearing to consider the application was held by the planning committee of HRC. All those who had made representations timeously were afforded an opportunity to make representations on all aspects of the application to this meeting. There was no further public consultation. I have previously described the process after the date of this meeting which culminated in the execution of the section 50 agreement with the January 1997 draft VMP annexed to it.
Counsel for the petitioners submitted that there had been a breach of regulation 22(1A) of the 1988 regulations, in that HC had requested further information in the context of negotiating the section 50 agreement and draft VMP, but there had been no public consultation about this. The public at large were entitled to be consulted. The section 50 agreement and draft VMP were "information gathered" which in terms of Article 6(2) of the EA Directive required to be made available to the public. Likewise they were a description of the measures envisaged in order to avoid, reduce or remedy significant adverse effects which had been identified within the meaning of paragraph 2(d) of Schedule 3 to the 1988 regulations. On a proper construction of the 1988 regulations in light of the EA Directive it was the final plan that had to be made available for public consultation. The VMP was a crucial part of the overall plan or project on which public consultation was required; indeed, in that the section 50 agreement left the final version of the VMP for future agreement, there was no plan or project in existence at the time that planning permission was granted in March 1997. The "project" could only be the final project, ie. what was to be built and how it was to be used. Counsel submitted that the difference between the January 1996 and January 1997 drafts of the VMP had been sufficiently significant to cause SNH to withdraw its objection. In the circumstances it was extraordinary that there had been no further consultation.
In the course of these submissions counsel for the petitioners referred to case C-431/92 Commission of the European Communities v Federal Republic of Germany [1995] ECR I-2189, which arose from the giving of consent for the construction of a new block at Grosskrotzenburg Thermal Power Station ("Grosskrotzenburg"). Paragraph 43 of the judgment of the European Court of Justice includes the following passages:
"According to the documents before the Court, an environmental impact assessment was carried out in the course of the procedure for the grant of consent for the project .... The developer provided in particular information on the environmental impact of the project ... [I]t is common ground that the information was made available to the public concerned who had the opportunity to express an opinion. In those circumstances, the objective of making the public aware of the environmental implications of a project on the basis of specific information provided by the developer was attained."
Counsel emphasised these last words, and submitted that "specific information" must mean the final information on which members of the public could make reasoned comments.
Counsel also advanced a submission based on passages in Dutch Dykes to the effect that if the procedure which had been followed in relation to the section 50 agreement and draft VMP after March 1996 did not fall within the provisions of the 1988 regulations, then the EA Directive could be given direct effect; it could be relied upon by individuals, and in any event the Court must raise the issue itself to ensure compliance with EC law.
Before leaving the submissions of counsel for the petitioners on this issue, I should record that in his first speech he based his argument in part on the provision in Article 6(3) of the Habitats Directive that in the light of the conclusions of the assessment of the implications for the site, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. At that stage of his submissions, counsel sought to rely on these last words, but in his second speech he expressly disavowed any reliance on Article 6(3) of the Habitats Directive in the context of the environmental information issue, so I need say not more about this submission.
The main reply to these submissions came from counsel for HC. After referring to the relevant provisions of the 1988 regulations, which I have quoted above, and indicating the matters which were not in dispute, to which I have already made reference, counsel submitted that an environmental impact assessment does not in itself require preventive action or, indeed, any mitigating steps to be taken. It was a mechanism intended to ensure that a decision-making authority is aware of the relevant issues relating to the environment. So long as the authority had so made itself aware, the EA Directive and the 1988 regulations left it completely open to the authority to grant consent to any application, regardless of how damaging to the environment it might be: see regulation 6(2) of the 1988 regulations. Counsel pointed out that counsel for the petitioners had disavowed any intention of arguing that the 1988 regulations did not properly implement the EA Directive, but he had also referred to the Directive as "supplementing" the regulations. Counsel submitted that this was not a legitimate approach, under reference to the conditions under which a private litigant can invoke a Directive as laid down in case C-208/90 Emmott v Minister for Social Welfare and Another [1991] ECR I-4269. In any event if it was legitimate to take account of the provisions of the Directive, it was important to note that under Article 2(1) all that was required was the making of an assessment before consent was given, and under Article 6(2) all that was required was an opportunity to the public to express an opinion before the project was initiated. Counsel referred to Circular 13/1988, and in paragraph 7 thereof, which I have already quoted. He referred to the procedure which had been followed up to the date of the meeting on 4 March 1996, as summarised in HC's pleadings.
Counsel for HC drew attention to an averment in the petitioners' pleadings to the effect that the environmental assessment failed properly to address the impact of the construction works. Counsel for HC addressed me at length about this matter, with a view to demonstrating that this averment was ill founded. Counsel for the petitioners, however, had made no reference to this matter in his first speech, nor did he subsequently in his second speech, so I proceed on the basis that the environmental information issue falls to be considered in relation to the impact on the environment of visitors using the funicular railway.
Counsel for HC drew attention to an averment for the petitioners that the EA Directive required the environmental statement inter alia to describe the measures envisaged in order to avoid, reduce and if possible remedy significant adverse effects, that this was not done in either the environmental statement or the addendum, and that as a result the public, including the petitioners, were not given an opportunity to express an opinion on "this vital visitor-management issue" prior to planning permission being granted. Counsel submitted that such a sweeping assertion was unjustified in face of environmental statement and the addendum, and drew attention to numerous passages in each document where visitor management was discussed. I do not think it necessary to set out those passages here. Counsel pointed out that in addition the January 1996 draft VMP was in its entirety a document describing measures to avoid or reduce adverse effects. The public had been consulted about it and it had been considered by HC. If the argument for the petitioners was simply that what was finally before HC when it granted consent was not precisely the same as had been put out for public consultation, then the petitioners misunderstood the purpose of consultation. Consultation would be pointless unless the party carrying out the consultation was entitled to alter its proposals after consultation. Counsel referred to R v Islington London Borough Council, ex parte East [1996] E.L.R. 74 (Q.B.D.) at p.88G, where it was stated that there was no duty "to consult further on [an] amended proposal which had itself emerged from the consultation process". It was a proposal reflecting the consultation process itself. Reference was also made to R v Secretary of State for Wales, ex parte Williams, 1996 C.O.D. 127. Alternatively, if the criticism was that there were aspects of the section 50 agreement and draft VMP that were material and had not been previously published for public comment, then the answer was that no such aspects had been identified by the petitioners because there were none.
Counsel for HC continued his submissions by referring in detail to the provisions of the section 50 agreement and the draft VMP. He pointed out that the use of a section 50 agreement had been contemplated in the addendum to the environmental statement, as were the management of the Coire Cas car park to discourage its use for access to the proposed European sites and the use of a closed system at the top of the funicular. The draft VMP annexed to the section 50 agreement was contractually agreed to be indicative of the terms of the final VMP, which would give greater detail and precision. The public had been consulted on the substance of what was contained in that draft. A detailed comparison of the January 1996 draft with the January 1997 draft did not disclose any provision of substance in the latter on which public consultation had not taken place. Moreover, the third draft of heads of agreement had been consulted upon. In summary therefore, on the question of visitor management, the environmental statement, the addendum and the January 1996 draft VMP showed that HC had considered and the public had been consulted on a detailed description of the measures envisaged. On the question of a closed system and the management of the access road and Coire Cas car park, HC had opted for the more restrictive and hence protective of the options that had been so described. These had been put out for consultation, and it was absurd to suggest that what was in fact adopted by HC in the planning conditions, the section 50 agreement and the annexed draft VMP had not been consulted on.
Counsel for HIE and CCC adopted the submissions of counsel for HC. In addition counsel referred to Berkeley v Secretary of State for the Environment and Another, 12 February 1998, unreported, in which the Court of Appeal examined the consequences, in the circumstances of that case, of the admitted failure of the Secretary of State to consider the requirement to prepare an environment statement. The Court considered the terms of the EA Directive and referred to Grosskrotzenburg, before holding that the Court retained a discretion, notwithstanding the absence of an environmental statement, to decline to quash a decision if the objectives of the Directive were in substance achieved by the procedure followed. Pill L.J. said at p.20:
"These objectives include the provision of appropriate information in a comprehensible form, making the public aware of the environmental implications of a project, giving an opportunity to the public to express opinions about it, and the decision maker taking account of opinions expressed and making an overall assessment when reaching a conclusion."
In my opinion the petitioners' case on the environmental information issue is irrelevant. As I have said, their case is that HC acted unlawfully in not making the final draft of the section 50 agreement and VMP available to the public, because this was a measure "envisaged in order to avoid, reduce or remedy" significant adverse effects on the environment of the proposed development, within the meaning of paragraph 2 of Schedule 3 to the 1988 regulations, and therefore was part of the specified information required to be included in an environmental statement. Counsel made no criticism of the procedure which had been followed at earlier stages, up to and including the meeting in March 1997, and in particular did not suggest that the required public consultation had not taken place. Moreover, counsel did not, as I understood his submissions, suggest that there was any material provision in the section 50 agreement and draft VMP annexed thereto which had not featured in one form or another in the earlier consultation process. Comparison of the lists of contents of the January 1996 and January 1997 versions of the draft VMP, both of which I have previously quoted, is sufficient to demonstrate that the subject matter remained substantially the same. The submission was presented as one of principle, that the procedure could not validly be brought to a conclusion without public consultation on the final draft. In my opinion this submission was misconceived. As I have said, given that the petitioners accept that the 1998 regulations fully implemented the EA Directive, reliance on the latter is confined to using it as an aid to interpretation of the former. I can find nothing in the EA Directive which requires the 1988 regulations to be interpeted as impsoing a procedure of the kind desiderated by the petitioners. I would respectfully adopt Pill L.J.'s summary in Berkeley of the objectives of the Directive as including the provision of appropriate information in a comprehensible form, making the public aware of the environmental implications of a project, giving an opportunity to the public to express opinions about it, and the decision maker taking account of opinions expressed and making an overall assessment when reaching a conclusion. This appears to me to be consistent with the approach of the European Court of Justice in Grosskrotzenburg at paragraph 43, the main requirements of which were the provision of specific information by the developer, on the basis of which the public were made aware of the environmental implications of a project and had an opportunity to express an opinion. These two passages appear to me to be no more than a reflection of what is normally understood as the process of public consultation on any particular issue. The procedure desiderated by counsel for the petitioners appears to me to go far beyond what would normally be regarded as consultation, as it would in effect amount to a requirement to secure each and every one of the consultees' approval of the final draft before the process was complete. I can find no authority for this in the EA Directive or in the 1988 regulations. What is envisaged in the regulations is that parties holding a notifiable interest in neighbouring land and members of the public should have an opportunity to make representations in light of an environmental statement containing the specified information. It is not envisaged that such persons will be entitled to a further opportunity to make representations except in the circumstances provided for by regulation 22(1) and (1A). So long as account is taken at subsequent stages of the representations so made, the procedural requirements of both the Directive and the regulations are satisfied. The consultation in the present case appears to me to have been exceptional in the number of opportunities afforded to the petitioners among others to
Conclusion
I have been able to reach a decision about the relevancy of each of the three main issues on which I was addressed on the basis of the parties' pleadings, the documentary productions and the submissions of counsel at the first hearing. Counsel for the petitioners suggested various questions which I might, if I was so minded, refer to the European Court of Justice under Article 177 of the Treaty, but he did not move me to refer any such question nor did counsel for any other party do so. I see no need for any such reference to be made. Counsel for the petitioners also suggested that evidence could be led at a second hearing with a view to establishing where the boundaries of the European site should be drawn. This would, however, only have been relevant if I had considered that it was open to me to enter into the merits of the dispute, which for reasons I have explained I do not feel entitled to do.
Since I have reached the view that the petitioners' case against all the respondents on the boundary issue and against HC, HIE and CCC on the assessment and environmental information issues is irrelevant, it seems to me to be the appropriate course to sustain the general plea to the relevancy tabled by each of the respondents. I shall accordingly sustain the first plea-in-law for SNH, the first plea-in-law for the Secretary of State, the second plea-in-law for HC and the first plea-in-law for HIE and CCC, and dismiss the petition.
|
OPINION OF LORD NIMMO SMITH in the Petition of (FIRST) W W F - UK, a Company limited by Guarantee and incorporated under the Companies Acts and having its registered office at Panda House, Weyside Park, Godalming, Surrey, GU7 1XR; and (SECOND) THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS, established by Royal Charter and having their Head Office at The Lodge, Sandy, Bedfordshire, SG19 2DL Petitioners; for Judicial Review of decisions relating to the Protection of European Sites at Cairngorm Mountain, by Aviemore and proposals for construction of a funicular railway thereon ________________ |
Act: Sir Crispin Agnew
Tods Murray, WS
Alt: Hodge, QC, Howlin
Archibald Campbell & Harley
WS (first respondents)
Davidson, QC, Shand
Brodies, WS
(second respondents)
Upton
Biggart Baillie
(third respondents)
Martin, QC, Murphy
Maclay Murray& Spens
(fourth & fifth respondents)
27 October 1998