Harbour revision order — Site proposed for special protection area — Whether secretary of state entitled to treat it as though already so designated — Appropriate test to be applied — Whether sufficient provision for compensatory measures — Section 14 of Harbours Act 1964 — Regulation 53 of Conservation (Natural Habitats, etc) Regulations 1994 — Claim dismissed
The claimant owned and operated a sea terminal near to a port at Immingham, operated by the interested party, ABP. It challenged a decision by the defendant secretary of state, following an application by ABP, to make a harbour revision order pursuant to his powers under section 14(1) of the Harbours Act 1964. The authorised works included the construction of five roll-on, roll-off berths. In reaching his decision, the defendant had considered an environmental statement submitted by ABP and had taken account of the significant effect that the project would have upon the proposed Humber Estuary special protection area (SPA), including 22ha of intertidal habitat. The relevant environmental provisions were to be found in Council Directives 92/43/EEC (the Habitats Directive) and 79/409/EEC (the Birds Directive). The defendant treated the application as though the SPA had already been designated, and accordingly applied the less strict regime that had been introduced into the Birds Directive by Article 6 of the Habitats Directive. That regime permitted projects that would have a negative environmental impact if no alternative solution could be found and the project needed to be carried out in the overriding public interest. In such a case, regulation 53 of the Conservation (Natural Habitats, etc) Regulations 1994 required compensatory measures to ensure the overall coherence of Natura 2000, a European network of special areas of conservation. To that end, ABP entered into an agreement with English Nature and other bodies.
The claimant’s challenge, under section 44 of the 1964 Act, relied upon Commission of the European Communities v France C-374/98 [2000] ECR I-10799 (Basses Corbières). The claimant argued that the defendant, in treating the potential SPA as though it had already been so designated, was acting on the basis that it should have been so designated, and was accordingly obliged to apply the stricter test laid down by Article 4 of the Birds Directive. In the alternative, the claimant contended that, inter alia: (i) ABP’s environmental statement had been inadequate, giving insufficient details of the proposed compensatory measures; and (ii) the defendant had breached his obligation under regulation 53, since the agreement would not be sufficient to secure compliance by ABP.
Held: The claim was dismissed.
1. The Basses Corbières rule was that the more flexible Article 6 test was not available where an area should have been, but had not been, classified as an SPA; that rule applied only where the lack of classification as an SPA arose from a failure to comply with directive obligations. To allow an infracting state to benefit from the more flexible regime under Article 6 would encourage breaches of the directive; the rule was intended to ensure that an infracting state could not thereby gain an advantage. A distinction had to be drawn between the way in which a site was treated as a matter of government policy and whether it should have been classified as an SPA. In the present case, the defendant’s approach was a precautionary measure to protect the site pending a decision on classification. No breach of the directive was alleged, and, accordingly, Basses Corbières did not apply. The defendant had been entitled to apply the Article 6 test.
2. When considering the adequacy of an environmental statement, a rigid distinction should not be drawn between a project and the compensatory measures to be taken in consequence of it. An environmental statement was required to include a description of measures proposed to be taken to remedy the significant effects of the project; that could cover both compensatory and mitigatory measures. There was no evidence, in the present case, that the proposed compensatory measures would be the main or likely significant effects of the project, and the omission of some of them from the environmental statement did not prevent it from being an environmental statement in law.
3. Regulation 53 did not require that compensatory measures should be in place before consent was granted. The defendant had not breached his duty to secure compliance with Natura 2000 at the time of granting consent. There was no reason at that date for saying that the agreement was bound to fail in its objective.
Timothy Straker QC and Christopher Boyle (instructed by Herbert Smith) appeared for the claimant; Richard Drabble QC and James Maurici (instructed the Treasury Solicitor) appeared for the defendant; Nigel Pleming QC and Stephen Tromans appeared for the interested party, Associated British Ports.
Sally Dobson, barrister
