Site of special scientific interest — Whether respondent taking immaterial considerations into account in confirming notification of land as SSSI — Construction of section 28 of Wildlife and Countryside Act 1981 — Judge finding respondent under duty to confirm — Appeal dismissed
The respondent confirmed the notification of 13,335ha 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 appellant, who brought judicial review proceedings challenging the decision. The judge held that the respondent had been obliged to notify the land as an SSSI under section 28(1) once it was satisfied that the statutory criteria had been met, and, if it remained so satisfied, to confirm that notification under section 28(5). He rejected the appellant’s arguments that the respondent had taken into account immaterial considerations and that it had breached the appellant’s right to peaceful enjoyment of his possessions under Article 1 of the First Protocol to the European Convention on Human Rights.
On appeal, the appellant contended that the judge had erred in, inter alia: (i) failing to find that the respondent had taken account of immaterial considerations, in that it had not appreciated the different ambits of SSSI notification and notification as a special protection area (SPA) under the Birds Directive 79/409/EEC; and (ii) construing section 28 in a manner that deprived the respondent of any discretion.
Held: The appeal was dismissed.
1. The respondent’s opinion that the area was of special scientific interest by reason of the birds that it supported was rational, and had been reached after careful consideration. It inexorably followed that it was under a duty to notify under section 28(1). There was nothing in the process of consultation, or in the respondent’s consideration of objections, to which objection could be taken.
2. It was clear that an area of land could be, simultaneously, an SSSI and an SPA. In the absence of any challenge to the lawfulness of the scheme of section 28, the appellant’s arguments about the nature and purpose of other designations were not helpful.
3. The judge had not erred in his construction of section 28. What was of critical importance, and gave meaning to the statutory procedure, was the process by which the respondent satisfied itself that its original identification of the land as an SSSI remained correct. Section 28(5) was to be construed as giving rise to a power not to confirm, which was to be exercised in accordance with the conclusion reached following a genuine, open-minded consultation and investigation process. Once the section 28(1) factors had been reconsidered, there was only a limited basis upon which it would be open to the respondent to refuse to confirm a notification under section 28(5). In the present case, the decision to confirm had been properly taken.
4. If the designation as an SSSI could be shown to have had a disproportionate effect on the appellant, and one that the respondent had failed to take into account, that failure could found an argument based upon Article 1 of the First Protocol. However, such an argument failed on the facts of the present case. The respondent had been entitled both to notify and to confirm the SSSI.
David Holgate QC and Daniel Kolinsky (instructed by Richard Buxton, of Cambridge) appeared for the appellant; John Howell QC and Jane Collier (instructed by Browne Jacobson, of Nottingham) appeared for the respondent.
Sally Dobson, barrister
