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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Royal Society For The Protection Of Birds & Anor v Secretary Of State For Scotland, Re Application For Judicial Review [2000] ScotCS 216 (28 July 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/216.html
Cite as: 2000 SCLR 1045, [2000] ScotCS 216
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Dawson Lord Cowie
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P27/14a/98 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION FOR PETITIONERS on PETITION and ANSWERS THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS and ANOTHER Petitioners and Reclaimers; against THE SECRETARY OF STATE FOR SCOTLAND Respondent: for Judicial Review _______ |
Act: C.M. Campbell, Q.C., D. Johnston; Tods Murray, W.S. (Petitioners and Reclaimers)
Alt: McNeill, Q.C., Maguire; R. Henderson (Respondent)
28 July 2000
[1] The Royal Society for the Protection of Birds and the Wildfowl and Wetlands Trust Limited have brought a petition for the judicial review of the decision of the Secretary of State, in November 1998, to grant licences to two farmers to shoot barnacle geese on their farms on Islay. Under Section 53 of the Scotland Act 1998 this licensing function has been devolved to the Scottish Ministers and they are now the respondents. The licence granted to Mr. B. J. Abbott was to shoot no more than twenty of the barnacle geese on the farms Duich and Laggan, while Mr. Archibald was given a licence to shoot up to thirty on the farms Craigens and Killinallan. The petition was lodged shortly after the licences were granted but they both subsequently expired on 22 January 1999. In that sense the issue relating to these particular licences is academic but the challenge to the licences raised a general question relating to the approach of the Secretary of State and of the Scottish Ministers which the petitioners and officials of the Environment Department have discussed for some time and on which both parties wish to have the guidance of the court. The Lord Ordinary decided the point in favour of the respondents and dismissed the petition. His decision is reported as Royal Society for the Protection of Birds v. Secretary of State for Scotland 2000 S.L.T. 22. The petitioners have reclaimed.
[2] The relevant domestic legislation can be summarised. Under Section 1 of the Wildlife and Countryside Act 1981 ("the 1981 Act"), subject to various exceptions, anyone who intentionally kills a wild bird commits an offence, but Section 16(1)(k) provides that Section 1 does not apply to anything done for the purposes of preventing serious damage to crops, if it is done under and in accordance with the terms of a licence granted by the appropriate authority. The licences granted to the farmers therefore removed the killing of the geese from the prohibition in Section 1 of the 1981 Act. But the farms in question lie in areas which were originally notified as sites of special scientific interest under Section 23 of the National Parks and Access to the Countryside Act 1949. The notifications now have effect as if given under Section 28(1) of the 1981 Act (Section 28(13)). Under subsection (5) of Section 28 the owners or occupiers of land in the relevant areas on Islay were not to carry out on that land any operation specified in the notification, unless they had previously notified Scottish National Heritage. Among the specified operations were recreational or other activities likely to disturb barnacle and white-fronted geese. In 1998 the farmers duly notified Scottish National Heritage that they wished to shoot barnacle and white-fronted geese on their farms.
[3] The petitioners do not dispute that, if - somewhat artificially - the matter were viewed only in terms of domestic law, in theory a licence could be lawfully granted for the shooting of barnacle and white-fronted geese on the farms, even though they were situated on sites of special scientific interest. Their contention before us was that, when the domestic legislation was applied within the context of the relevant European Community law, the grants of the licences in the particular circumstances of this case had been unlawful.
[4] Our domestic legislation for the protection of the environment has been supplemented - and indeed, in part, shaped - by legislation at Community level. In particular, in 1979 under Article 235 EC (now Article 308) the Council adopted a directive on the conservation of wild birds (79/409/EEC). The second recital to the directive noted that a large number of species of wild birds naturally occurring in the European territory of the Member States were declining in number, very rapidly in some cases. Many such species were migratory and constituted a common heritage whose protection was a trans-frontier environment problem, entailing common responsibilities (third recital). The seventh recital noted that the necessary measures had to apply to the various factors which might affect the number of birds, viz. the repercussions of man's activities, including the destruction and pollution of their habitats. The ninth recital went on
"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".
By Article 1(1) the directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States. Article 2 provides that Member States are to take the requisite measures to maintain the population of the naturally occurring wild birds 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(1) lays on Member States the more particular obligation to take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all naturally occurring wild birds. That obligation includes the creation of protected areas and the upkeep and management of habitats inside and outside the protected zones (Article 3(2)(a) and (b)).
[5] So far as concerns areas outside the protected zones, Member States are to take the requisite measures to establish a general system of protection for all species of naturally occurring wild birds. The system of protection is to prohibit various activities including (Article 5(d))
"deliberate disturbance of these birds, particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive".
The various provisions which I have outlined so far apply to all species of naturally occurring wild birds. But Annex I to the directive lists various species of birds, including the white-fronted goose and the barnacle goose, which are considered particularly worthy of protection. In the case of such species, Article 4, as originally adopted, provided inter alia
"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 these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.
...
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."
[6] Article 9 provides that, where there is no other satisfactory solution, a Member State may derogate from the provisions of Articles 5, 6, 7 and 8 for a number of reasons, including the prevention of serious damage to crops. But the Member State requires to report to the Commission on the implementation of Article 9 and the Commission is to ensure that the consequences of these derogations are not incompatible with the directive (Article 9(3) and (4)).
[7] On 14 July 1988 the Secretary of State classified the two sites of special scientific interest at Laggan Bay and Gruinart Flats as special protection areas for the conservation of barnacle and white-fronted geese in terms of Article 4(1) of the Wild Birds Directive. It follows that the licences granted to Mr. Abbott and Mr. Archibald were for shooting barnacle geese on a special protection area for the conservation of that species. As I have just noted, Article 9 of the Wild Birds Directive does not permit any derogation from Article 4 which applies to such special protection areas. It follows that it permits derogation from the general measures of protection for barnacle and white-fronted geese under Article 5 but not from the particular measures under Article 4 which apply to the special protection areas for them at Laggan Bay and Gruinart Flats. The grant of the licences for shooting the barnacle geese under Section 16 of the 1981 Act had therefore to be in conformity with Article 4.
[8] In 1992, under Article 130r EC (now Article 174), the Council adopted a directive (92/43/EEC) on the conservation of natural habitats and of wild fauna and flora, commonly referred to as "the Habitats Directive". This directive was transposed into law in the United Kingdom by the Conservation (Natural Habitats, &c.) Regulations 1994 (S.I. 1994 No. 2716) ("the 1994 Regulations"). Regulation 3(2) imposed on the Secretary of State, and now imposes on the Scottish Ministers, an obligation to exercise their functions under Part I and Sections 28 to 38 of the 1981 Act so as to secure compliance with the requirements of the Habitats Directive. Those functions include the grant of licences under Section 16.
[9] According to its third recital, the main aim of the Habitats Directive was to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements and thereby to make a contribution to the general objective of sustainable development. As its name shows, the directive does not itself deal with wild birds, but rather with habitats and with wild animals and plants. But one of the purposes of the directive was "to create a coherent European ecological network" of special areas of conservation into which the special protection areas classified under Article 4 of the Wild Birds Directive were to be incorporated (sixth and seventh recitals). Article 3(1) therefore provided for the setting up of the ecological network of special areas of conservation under the title Natura 2000 and further provided that the network was to include the special protection areas classified under the Wild Birds Directive. It follows that both the Laggan Peninsula and Gruinart Flats special protection areas on Islay are now incorporated into the Natura 2000 network of special areas of conservation which enables
"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" (Article 3(1)).
Article 6 lays down in more detail how this is to be achieved. In particular, paragraphs 2 to 4 of Article 6 provide:
"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 overriding 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.
Where 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 6(3) and 6(4) are transposed into our law by Part IV of the 1994 Regulations. Article 7 of the Directive, which is of importance for present purposes, then provides:
"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 Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) or similarly recognized 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 Directive 79/409/EEC, where the latter date is later."
[10] Under Regulation 10 of the 1994 Regulations implementing the Habitats Directive, special protection areas are included in the definition of "European site". The Regulations contain elaborate provisions for the notification and authorisation of potentially damaging operations on these sites. In particular, under Regulation 19 the farmers in the present cases required to give written notice to Scottish Natural Heritage before they could shoot the protected geese. It is agreed that they duly did so and that, on the expiry of four months, the necessary condition for shooting the geese was fulfilled in terms of Regulation 19(1) and (2).
[11] I turn now to the first area of dispute between the parties. The petitioners and respondents agree that Article 7 had the effect of replacing the obligations under the first sentence of Article 4(4) of the Wild Birds Directive with the obligations derived from Article 6(2), (3) and (4) of the Habitats Directive, but they are in dispute about the nature of the change made. More particularly, they agree that the provisions of Article 6(3) and (4) apply just as they stand, but they disagree about the change made in relation to Article 6(2). The contention for the petitioners is that Article 6(2) imports into the Wild Birds Directive the need to take appropriate steps, in special protection areas, to avoid disturbance of the species of birds for which the areas have been classified, in so far as such disturbance could be significant in relation to the objectives of "this Directive" - meaning the Habitats Directive, in which those words are found. The contention for the respondents, which coincides with the view of the Lord Ordinary (2000 S.L.T. at p. 26 K - L), is that, when Article 6(2) is "transposed" into the Wild Birds Directive and replaces the obligations in the first sentence of Article 4(4) of that directive, the reference to "the objectives of this Directive" falls to be construed as a reference to the objectives of the Wild Birds Directive.
[12] In my view the contention for the petitioners is to be preferred.
[13] The obligation in Article 6(2) is an obligation on the Member State to avoid disturbance of the species in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive. Whatever the exact content or extent of that obligation may be in any given case, as a matter of substance its content and extent are to be measured by reference to the objectives of the Habitats Directive. What Article 7 of that directive does is to replace the obligations laid down in the first sentence of Article 4(4) of the Wild Birds Directive with various obligations, including the obligation defined and measured in Article 6(2) by reference to the objectives of the Habitats Directive. Article 7 achieves that if it is interpreted according to the petitioners' construction. On the other hand, if the respondents' argument were correct, the obligations in Article 4(4) of the Wild Birds Directive would be replaced by the obligations as defined by Article 6(3) and (4) of the Habitats Directive and by an obligation which is not defined and measured by the standard laid down in Article 6(2) of that directive, but by reference to a different standard, namely, the objectives of the Wild Birds Directive. Even as a matter of pure linguistic and legal analysis, without reference to any wider consideration, the respondents' contention is unacceptable.
[14] It is equally unacceptable when the scheme of the Habitats Directive is considered. Although it does not supersede the Wild Birds Directive or the provisions in that directive for the classification of special protection areas, once classified under the Wild Birds Directive, those areas are incorporated into the Natura 2000 network of special areas of conservation. One would therefore expect that the scheme for the protection of the special areas of conservation in the Natura 2000 network, which is laid down in Article 6(2) - (4), would also apply, in the same way, to the special protection areas that form part of that network. The application of the same obligations to all parts of the network, whether their classification derives from the Wild Birds Directive or the Habitats Directive, helps to make the network "coherent". If a distinct obligation defined by reference to the objectives of the Wild Birds Directive were applied to the parts of the network comprising special protection areas, this would tend to make the network less coherent.
[15] Moreover, Article 6(2) does not fall to be read in isolation but in conjunction with paragraphs 3 and 4. The obligations of the Member States in respect of special areas of protection are to be gathered from the totality of the provisions in these paragraphs. The extent of the obligations in paragraphs 3 and 4 is plainly to be measured by reference to the conservation objectives for the special protection area under the Habitats Directive. It would make little sense for different objectives to apply to paragraph 2.
[16] Although counsel for the respondents referred us to the judgment of the Court of Justice in Commission v. France (C-96/98) 25 November 1999, I did not find anything in that judgment to suggest that, in the context of the Wild Birds Directive, Article 6(2) of the Habitats Directive was to be interpreted as referring to the objectives of the Wild Birds Directive. On the other hand, the fact that Article 6(2) may embody different criteria from those used for classifying a site under Article 4(1) of the Wild Birds Directive appears to be consistent with the approach of the Court in R. v. Secretary of State for the Environment ex parte R.S.P.B. [1996] E.C.R. I - 3805.
[17] For these reasons I am satisfied that under Article 4(4) of the Wild Birds Directive the obligation of the Scottish Ministers is to take appropriate steps to avoid disturbance of the species for which the special protection areas have been designated, in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive. More particularly, in respect of the special protection areas on Islay, the obligation of the Secretary of State was, and the obligation of the Scottish Ministers is, to take appropriate steps to avoid disturbance of the barnacle geese and white-fronted geese for which those areas were classified, in so far as the disturbance could be significant in relation to the objectives of the Habitats Directive. It is unclear whether this particular issue was focused in debate before the Lord Ordinary. But, in so far as he held that the significance of any disturbance of the geese was to be judged in relation to the objectives of the Wild Birds Directive rather than of the Habitats Directive, in my view he applied the wrong test.
[18] Before the Lord Ordinary the parties joined issue on a number of points concerning the application of the Wild Birds Directive to the grant of the licences to shoot the geese. The Lord Ordinary decided all of the points in favour of the Scottish Ministers and before us the petitioners concentrated on only one of the points in dispute. According to the petitioners, in deciding whether the disturbance to the geese, resulting from shooting a limited number of them, could be regarded as significant in relation to the objectives of the Habitats Directive, the Secretary of State should have considered the effect of the shooting not only in relation to the species overall, but also in respect of the populations of geese on the special protection areas themselves. The position of the Scottish Ministers was that the obligation of the Secretary of State had been to consider the effect of the shooting on the viability of the population of the species of geese in their area of distribution. If the shooting would not affect the overall viability of the species, then it would not impair the ability of the special protection area to fulfil its function as part of the Natura 2000 network and it would therefore not be significant in relation to the objectives of the directive.
[19] This formulation of the Scottish Ministers' position is a refinement of the submission in the Outer House as recorded and sustained by the Lord Ordinary. He held (2000 S.L.T. at p. 27 E - F) that what Article 6(2)
"contemplates is the avoidance of activities within an SPA which will have a significant effect on the species overall in respect of its survival and this, in my opinion, is entirely in accordance with common sense. To determine the issue solely on a local basis would defeat the basic objective of the Directive, since it would lose sight of the primary object of the Directive and create ad hoc results."
Before us counsel for the petitioners argued that this formulation of the test was unsound.
[20] In reaching his conclusion the Lord Ordinary was influenced by his understanding of the decision of the European Court of Justice in Commission v. Federal Republic of Germany [1991] E.C.R. I - 1883, commonly known as "the German Dykes" case. The case concerned works in the Leybucht, a bay in the East Friesian Wattenmeer on the North Sea coast of Lower Saxony which is, apparently, the last virtually unspoilt large salt-water bay on that coast. It has long been a nesting and feeding area and a staging post for various species of birds. In particular it is an important breeding area for avocets. In 1985 the German Government intimated to the Commission that it intended to classify certain lands, including the Leybucht, as special protection areas under Article 4(1) of the Wild Birds Directive. The Government did not in fact do so until September 1988, by which time the Commission had complained of their failure to take the formal step.
[21] In the southern corner of the bay lies the harbour of Greetsiel and, before the projected works, at the northern end of the bay lay Leybuchtsiel harbour. These harbours were reached by navigation channels. The government of Lower Saxony had for some years been engaged in a plan for raising and strengthening the sea dykes as defences against flooding. In 1985 the government approved a scheme of works which involved closing two navigation channels and Leybuchtsiel harbour. This meant that, thereafter, the Leybucht and the birds on it would be left in absolute peace. The scheme also involved the construction of a reservoir and the strengthening and widening of an existing dyke, with the result that the base of the dyke was displaced some 50 metres towards the sea. Since one boundary of the special protection area was defined by reference to the base of the dyke, the effect of the displacement of the dyke was to reduce the size of the special protection area. The line of the dyke near Leyhörn was determined with the aim of keeping open the channel between Greetsiel harbour and the open sea.
[22] The Commission sought a declaration that by carrying out works detrimental to a special protection area, contrary to Article 4(4) of the Wild Birds Directive, Germany had failed to comply with its obligations under the Treaty. In particular, the Commission took the view that the works carried out in accordance with the planning decision were contrary to Article 4(4), on the ground that they caused deterioration in the living conditions for the birds in the Leybucht and disturbed the birds present there. It should be noted that the action related to Article 4(4) in its unamended form which, on its face, contained no exception for works in the public interest. That is, of course, very different from the much more elaborate scheme introduced by Article 6(2) - (4) and Article 7 of the Habitats Directive, which was still only in draft at the time of the proceedings. The Court of Justice dealt with three matters.
[23] First, they held that a Member State could reduce the extent of a special protection area only on exceptional grounds (paragraph 21), which included dyke works and the strengthening of coastal structures to avert the danger of flooding and to protect the coast, so long as the measures were kept to a minimum and involved only the smallest possible reduction of the special protection area (paragraph 23).
[24] Secondly, they held that the line of the dyke in the Leyhörn sector was influenced by considerations which did not relate exclusively to coastal protection but also to the need to ensure that fishing vessels from Greetsiel had access to the harbour. The Court held that the requirements of Article 4(4) would not have justified taking this economic requirement into account (paragraph 24), but they went on to hold that this aspect of the project had specific positive consequences for the habitat of the birds (paragraph 25). On this basis only, the line of the new dyke could be justified (paragraph 26).
[25] Finally, the Court held that the disturbance in carrying out the works did not exceed the minimum necessary. Moreover, the information about the number of avocets "in that sector of the Wattenmeer" showed that there had been no significant change, within the meaning of Article 4(4), in population trends for the species (paragraph 27). This part of the judgment appears to be based on information supplied by the German Government and recorded in the Report for the Hearing ([1991] E.C.R. I at pp. 895 - 896):
"The German Government admits that the implementation of the dyke-building project may entail certain disturbances for the bird population of the Leybucht. However, the most recent findings show that there has been no major disturbance so far, in particular for the avocet. The most recent checks show that the avocet has scarcely been disturbed by the dyke-building work carried out at Leyhörn on the barrage and the reservoir, even though that is the largest building site of the entire project. In 1989 several nesting pairs established themselves for the first time to the west and east of the reservoir, some in the immediate vicinity of the access road to the building site, which is used by heavy lorries."
In paragraph 27 of their judgment the Court were therefore pointing out that the construction works had not caused any significant change in the bird population of the Leybucht, i.e. in the bird population of the special protection area.
[26] In his opinion (paragraph 33) the Advocate General referred to an argument to which the United Kingdom attached considerable importance. It was to the effect that the word "significant" in the unamended version of Article 4(4) of the Wild Birds Directive was to be assessed in relation to the survival and reproduction of the species concerned in their area of distribution. In so far as the planned works did not endanger the survival and reproduction of the bird species present in the Leybucht, they were not, according to the United Kingdom, contrary to the directive. The United Kingdom's argument is also set out in the Report for the Hearing ([1991] E.C.R. I at p. 899).
[27] Advocate General Van Gerven dealt with the argument and with the opposing argument of the Commission in this way ([1991] E.C.R. I - 917 at paragraphs 33 and 34):
"Construed in that way Article 4(4) of the directive would permit a considerable degree of pollution, deterioration and disturbance. That does not appear to me to be consistent with the objective of Article 4. In my view the Council intended, in the provision in question, to indicate that no pollution, deterioration or disturbance which significantly affects the quality of the living conditions of the birds may take place in the protection area concerned. It thus also covers negative aspects which, although they do not endanger the survival and reproduction of the birds, do significantly affect their survival and reproduction in the most suitable circumstances....
34. Nor does the very broad interpretation given by the Commission to Article 4(4) of the directive seem to me to be correct. I think its submission that that provision prohibits as a matter of principle every act resulting in pollution, deterioration, or disturbance goes too far. Article 4(4) goes on from Article 4(1) and (2), which require Member States to designate special protection areas. In speaking of 'appropriate steps to avoid pollution or deterioration [or disturbances] ... in respect of the protection areas', Article 4(4) is, I think, referring in particular to an obligation on the part of the Member States to establish general rules for the protection in those areas of the quality of the living conditions of birds, so that they can live and reproduce in the most suitable circumstances. The proposal for a habitat directive reflects the same approach. In Article 7(2) of that proposal consideration of the appropriate protection status to be given to habitat areas is indicated as an initial measure in preventing the pollution or deterioration of habitat. The establishment of such general rules for the protection of the most suitable conditions of living and reproduction need not necessarily prohibit all pollution, deterioration or disturbance in any circumstances."
[28] In the Outer House counsel for the respondents argued that the Advocate General had rejected the United Kingdom's argument that the significance of any disturbance of the birds for the purposes of Article 4(4) was to be assessed in relation to the survival and reproduction of the species concerned but that, in their turn, the Court had rejected this aspect of his advice. The Lord Ordinary said (2000 S.L.T. at p. 27 D):
"I consider that the German Dykes case settles the issue so as not even to leave it open as to what should be the proper approach, since the Advocat[e] General had specifically put the matter at issue and his advice has been rejected...."
[29] In support of this reasoning the Lord Ordinary referred in particular to paragraphs 13, 21 and 27 of the judgment of the Court. I find nothing, however, in these paragraphs which shows that the Court intended to reject the Advocate General's view and thereby to adopt the approach embodied in the submission for the United Kingdom. Paragraph 13 simply records the submission of the United Kingdom. Paragraph 21 does not have any bearing on this aspect of the case since it is dealing with the point that only exceptional grounds could justify a Member State in reducing the extent of a special protection area. Finally, as I have already noted, in paragraph 27 the Court were concerned with information relating to the number of avocets in the Leybucht, i.e. in the special protection area, rather than with their numbers, and hence with their survival or reproduction, in their area of distribution. Far from adopting the submission of the United Kingdom that only the wider picture need be considered, the Court were concerned to examine the effect of the works on the population of avocets within the special protection area. In these circumstances I am unable to find in the German Dykes case support for the construction of Article 4(4) adopted by the Lord Ordinary.
[30] The German Dykes case involved the unamended version of Article 4(4). By contrast, in the present case we are concerned with Article 4(4) as amended by Article 7 of the Habitats Directive. Those amendments were prompted indeed by the judgment in the German Dykes case which many Member States saw as leaving too little scope for socially desirable development in special protection areas. Cf. R. v. Secretary of State for the Environment ex parte R.S.P.B. [1996] E.C.R. I at paragraphs 37 - 39. But the point at issue here remains the degree of disturbance of the species in a special protection area which is permissible under the legislation. In the light of the foregoing analysis of paragraph 27 of the judgment of the Court in the German Dykes case, I am satisfied that, contrary to the submission on behalf of the respondents, it is relevant to consider the effect of the disturbance on the population of the species in the special protection area itself. Such areas are classified precisely because they are the most suitable territories for the conservation of species of birds which are in need of special protection. Adopting the reasoning of the Advocate General in the passage which I have quoted but applying it to the amended version of Article 4(4), I would hold that the objective is to ensure that the conservation status of the vulnerable species is favourable. Therefore, disturbance which adversely affected the conservation status of the birds on the site would be significant. In particular disturbance should not impair the protection of the quality of the living conditions of the birds on the site and so affect their ability to maintain themselves on a long-term basis as a viable component of their natural habitat.
[31] The Community initiative for the conservation of vulnerable species of birds, by giving special protection to the most suitable territories, would be undermined if the effects of any disturbance on the local population in those territories were not taken into account. Indeed, taken to its logical conclusion, the respondents' approach would mean that, subject to Article 5, any disturbance whatever of a species on a special protection area would be permissible provided only that the Scottish Ministers were satisfied that it could not affect the viability of the species over its natural range. But, as the German Dykes case shows, Member States are under a legal obligation to classify these particular sites and, even for substantial economic reasons, they cannot impair them by subsequently reducing their area. Moreover, the scope for development which would affect the integrity of such sites is strictly limited by the provisions of Article 6(3) and (4) of the Habitats Directive. The respondents' contention, that under Article 6(2) the significance of any disturbance is to be judged only by reference to the viability of the species over its natural range, is therefore inconsistent with the concern for the integrity of the individual sites which is demonstrated by the German Dykes case and by the other paragraphs of Article 6. Furthermore, even assuming that in this particular case the Scottish Ministers are in a position to estimate the significance of any disturbance by reference to the viability of the geese over their natural range, there might be situations where the natural range of the species in question covered the territories of several Member States and where, as a result, such a test would be difficult, if not impossible, for the authorities of any individual Member State to apply. Indeed, as the third recital and Article 4(3) of the Wild Birds Directive and Articles 3 and 4 of the Habitats Directive show, the responsibility for making such judgments is not vested exclusively in the individual Member States. This is not to deny that, where the Scottish Ministers can in fact conclude that a disturbance on a special protection area could affect the viability of a species over its natural range, they must take appropriate steps to avoid it. Both the local and wider effects are relevant.
[32] While it does not have any binding legal status, I find support for the approach which I prefer in paragraph 3.6.2 of the guidance "Managing Natura 2000 sites" issued by the Commission in April 2000. But, as that paragraph indeed emphasises, even although the effects of any disturbance on the relevant birds in a special protection area must be taken into account, it does not, of course, follow that no disturbance whatever of the birds is permitted. What is not permitted is disturbance which adversely affects the ability of the species to maintain itself on a long-term basis on the site or - as the Commission puts it - which could contribute to the long-term decline of the species on the site.
[33] Neither side urged us to refer the question about the construction of Article 6(2) to the European Court of Justice for a preliminary ruling under Article 234 EC (ex Article 177). The decision on whether to refer a question is, of course, one for the court itself. But, since I have no real doubt that the approach advocated by the respondents is incorrect, I consider that we should decide the matter without making a reference.
[34] The Scottish Ministers accept that, in deciding to grant the licences in this case, the Secretary of State did not take account of the effects of the resulting disturbance on the population of geese on the special protection areas. For the reasons which I have sought to explain, I consider that in this respect he erred. It may well be, of course, that, if he had applied the correct test, he would still have concluded that any disturbance would not have been significant in terms of Article 6(2) of the Habitats Directive. For instance, in their pleadings the respondents suggest that any reduction in serious damage to the crops on the farms would help to ensure an equilibrium between the grass crop and the number of birds feeding on it. If so, that might indeed be a measure which contributed to the protection of the living conditions of the geese in their special protection area and so conduced to the long-term viability of the species on the site.
[35] In Statement 5(f) of the petition the petitioners make various averments about the alleged adverse effect of the shooting on the population of geese on the special protection areas. For instance, it is said that such disturbances "can substantially reduce the carrying capacity of the area". The respondents deny these averments and make their own averments about the effect of the shooting. In the light of his interpretation of Article 4(4) of the Wild Birds Directive, the Lord Ordinary held that the petitioners' averments were irrelevant. He accordingly dismissed the petition at the first hearing. For the reasons which I have given, it would have been preferable to leave the relevancy of the parties' respective cases to be determined once any disputed matters of fact had been determined at a second hearing. I would accordingly recall the Lord Ordinary's interlocutor and formally remit to him to proceed as accords. We were informed, however, that the parties had merely wished to obtain guidance on the questions of law and that they would not in fact seek a determination of the validity of the two licences which have long since expired.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Dawson Lord Cowie
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P27/14a/98 OPINION OF LORD DAWSON in RECLAIMING MOTION FOR PETITIONERS on PETITION and ANSWERS THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS and ANOTHER Petitioners and Reclaimers; against THE SECRETARY OF STATE FOR SCOTLAND Respondent: for Judicial Review _______ |
Act: C.M. Campbell, Q.C., D. Johnston; Tods Murray, W.S. (Petitioners and Reclaimers)
Alt: McNeill, Q.C., Maguire; R. Henderson (Respondent)
28 July 2000
[1] I agree with the Opinion of your Lordship in the chair and have nothing useful to add.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord President Lord Dawson Lord Cowie
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P27/14a/98 OPINION OF LORD COWIE in RECLAIMING MOTION FOR PETITIONERS on PETITION and ANSWERS THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS and ANOTHER Petitioners and Reclaimers; against THE SECRETARY OF STATE FOR SCOTLAND Respondent: for Judicial Review _______ |
Act: C.M. Campbell, Q.C., D. Johnston; Tods Murray, W.S. (Petitioners and Reclaimers)
Alt: McNeill, Q.C., Maguire; R. Henderson (Respondent)
28 July 2000
[1] I have had the opportunity to consider the Opinion of your Lordship in the chair and I concur with it. I also agree that this reclaiming motion should be disposed of in the manner which your Lordship proposes.