Local authority intending to construct major roadworks on environmentally sensitive land — Site not listed as area of special protection or conservation under EC Directive 79/409 — Appellant maintaining that omission due to error or oversight — Whether inspector under duty to apply Conservation (Natural Habitats) Regulations 1994 — Claim dismissed
The Taw-Torridge Estuary in Devon was an area of salt marsh that supported a large number of birds, including protected species such as the golden plover. The population of protected bird species on the marsh had declined to less than 1% of the British population of such birds, although the site was still home to a considerable number of wildfowl and other wildlife such as otters.
Devon County Council granted themselves planning permission to construct roadworks on the marsh as part of the Barnstaple western bypass, a decision that was upheld by the respondent’s inspector. The claimant represented the Green Party, and appeared at the public inquiry as an objector to the scheme. He subsequently challenged the validity of the inspector’s decision on two grounds, namely that: (i) although the site was not designated as a special protection area (SPA) and a special area of conservation (SAC) in accordance with EC Directive 79/409, transposed into English law by the Conservation (Natural Habitats) Regulations 1994 (the 1994 Regulations), this had been an oversight or error, and the respondent was under an obligation to treat it as such; and (ii) the inspector had misdirected himself in law in respect of the otters because the 1994 Regulations created a scheme of strict protection by which the disturbance of otter resting places was prohibited unless a licence was granted, under regulation 44, authorising such disturbance.
Held: The claim was dismissed.
Although the site had been regularly assessed for listing or conserving under various environmental regulations, it fell outside the specific guidelines in those various policies, and, accordingly, was not identified as a potential SPA or SAC. The inspector was therefore not required to treat it as such, and it was not within his remit, for the purposes of the planning application, to consider whether it should have been so identified.
Regulation 44 of the 1994 Regulations laid out the criteria to be considered when balancing the need to protect wildlife against a matter of overriding public interest, such as a road scheme. The conditions attached to the planning permission were designed to minimise the risks to the otters and other wildlife. The inspector had clearly considered the conditions in the light of regulation 44, and was entitled to recommend approval of the orders on the ground that any disturbance to wildlife would be minimal.
James Pereira (instructed by Earthrights Solicitors) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the respondent.
Vivienne Lane, barrister
