Site of special scientific interest — Whether defendant acting irrationally in confirming notification of land as SSSI — Whether defendant exceeding jurisdiction — Whether breach of claimants’ right to peaceful enjoyment of possessions — Section 28 of Wildlife and Countryside Act 1981 — Article 1 of First Protocol to European Convention on Human Rights — Claim dismissed
The defendant confirmed the notification of 13,335 ha of intensively farmed arable land as the Breckland Farmland, Norfolk and Suffolk site of special scientific interest (SSSI), pursuant to section 28 of the Wildlife and Countryside Act 1981, in order to protect an internationally important population of stone curlews. The SSSI included land belonging to the claimants, who brought judicial review proceedings challenging the decision. They contended that the defendant had: (i) acted irrationally and failed to take into account material considerations, in particular by departing from its own guidelines and from previous practice of not granting SSSI status in cases of extensive areas of conventional plantation or to habitats for migratory birds; (ii) exceeded its jurisdiction, in that the section 28 formula did not justify the designation of 13,335 ha of land in order to protect the nesting and breeding habitat of single pairs of stone curlews, which occupied the habitat only from March to October and which changed their sites yearly with the rotation of crops; and (iii) breached section 6 of the Human Rights Act 1998 by acting incompatibly with the claimants’ right to peaceful enjoyment of their possessions under Article 1 of the European Convention on Human Rights. In particular, they argued that stone curlews could have been protected without the need for notification and confirmation of the SSSI, by allowing the Secretary of State to include the area in question within a special protection area (SPA), which imposed fewer constraints upon landowners, pursuant to European Council Directive 79/409/EEC, or by concluding voluntary agreements with the landowners.
Held: The claim was dismissed.
1. Under section 28(1) of the 1981 Act, the defendant had been under a duty to notify the land as an SSSI once it was of the opinion that the statutory criteria had been met, namely that the land was of special interest by reason of any of its flora, fauna or geological or physiological features. The next stage was confirmation or withdrawal of the notification within nine months pursuant to section 28(5). Although section 28(5) connoted a discretion, if the defendant continued to believe that the statutory criteria were satisfied, that discretion could only lawfully be exercised in favour of confirming the notification. The defendant could not refuse to confirm because it considered that the stone curlew population would be protected more effectively, and in a way occasioning less interference with landowners’ peaceful enjoyment of their possessions, by voluntary agreements or by classification by the Secretary of State as an SPA. The defendant had addressed itself to, and answered, the correct statutory question and had confirmed the reason why the land had special interest. In doing so, it had been permissible for it to take into account the fact that that area was, or formed part of, one of the most suitable territories, in number and size, for the conservation of birds that were recognised as being of special significance at European level.
2. The defendant’s duty to exercise its judgment could not be qualified by its own past practice or by provisions in its own guidelines; if the defendant was of the opinion that a site satisfied the statutory criteria, it was obliged to act in accordance with that opinion.
3. As to the question of jurisdiction, the defendant had visited the area between the dates of notification and confirmation, and had applied its own expertise and judgment in determining whether to confirm and how extensive the SSI area needed to be in order to provide the requisite protection. There was no basis upon which the court could or should substitute its judgment for that of the defendant, which was better qualified to make the requisite assessments and value judgments: R (on the application of Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908 (Admin); [2003] Env LR 3 applied.
4. Given that the defendant had been duty-bound to confirm if the statutory criteria were met, any complaint of the claimants had to be that the statutory scheme, as opposed to the particular decision, was incompatible with Convention rights. However, they had expressly disavowed any challenge to the statute.
David Holgate QC and Daniel Kolinsky (instructed by Richard Buxton, of Cambridge) appeared for the claimants; John Howell QC and Jane Collier (instructed by Browne Jacobson, of Nottingham) appeared for the defendant.
Sally Dobson, barrister
