Secretary of State confirming building plans on site previously listed as potential special protection area — Appellant challenging decision on ground that failure to list site constituting breach of Council Directive 79/409 — Appellant maintaining that government under continuing obligation to treat site as constructive special protection area — Appeal dismissed
In 1990, an area surrounding the Taw estuary, in Devon, was listed as a potential special protection area (SPA). It had previously been listed as an important area for birdlife, but, at the time, there had been insufficient data as to relevant bird numbers to support the application. The area was subsequently included in lists drawn up by several environmental agencies but excluded from others, leaving unclear its status as a potential SPA or, indeed, as an important birdlife area.
In 2002, the Secretary of State confirmed various orders in relation to a scheme to erect a bridge across the estuary. The appellant objected to the proposal on the grounds that: (i) had the government fulfilled its obligations under Directive 79/409 (the Wild Birds Directive), the estuary would have been classified as an SPA; and (ii) in such circumstances, European case law required that it be treated as if it had been so designated. The Secretary of State held that no evidence existed to suggest either that the estuary was likely to be designated as an SPA or that the UK had breached its obligations under the directive.
The appellant appealed. He argued that the estuary had been a constructive SPA from at least the date of the 1990 listing, and that the government was under a duty to treat it as such. He requested that the decision be quashed and redetermined or referred to the European Court of Justice on the basis that the Secretary of State had erred in failing to address the issues of: (i) whether the government could de-designate the land as an SPA; and (ii) if so, what condition would have to be satisfied before that could take place.
Held: The appeal was dismissed.
It appeared that, at some time prior to 1994, a strong case existed for the area’s classification as an SPA. It was not apparent why the Secretary of State had refused to classify it as such and why he had excluded it from the list of designated sites annexed to PPG 9 in 1994. That decision could have been challenged at the time. Since PPG 9 had been published for the guidance of local authorities and developers, who had no doubt acted upon it in the intervening period, it was now too late to challenge the 1994 decision or to base any argument upon its alleged legal shortcomings.
A potential SPA remained a proposal only until its classification. A constructive SPA, as argued by the appellant, did not exist. Classification was a legal step with important consequences for landowners and conservationists, and, as such, the status of the land required certainty, for example by an entry on the land registry. Since the site had never been designated as an SPA, it could not be declassified, and the appellant’s contentions could not stand.
Robert McCracken QC and Jeremy Pike (instructed by Earthrights) appeared for the appellant; Richard Drabble QC and John Litton (instructed by the Treasury Solicitor) appeared for the respondent.
Vivienne Lane, barrister
