Costs – Protected costs order – Aarhus Convention – Claimant seeking judicial review of defendant’s refusal of licence to kill buzzards – Whether defendant making unreasonable decision – Whether claim falling within cost protection of Aarhus Convention – Application granted
The claimant was a gamekeeper who managed six pheasant shoots over eleven farms covering some 2000 hectares in Northumberland. The common buzzard was protected under the WiIdlife and Countryside Act 1981 and could not be killed or captured without a licence issued by the defendant, Natural England. Statutory tests had to be satisfied before such a licence could be issued. The claimant had applied for and been refused licences to kill a small number of common buzzards which, he said, were doing serious damage to his pheasant poults by killing and disturbing them.
The claimant, supported by the National Gamekeepers Organisation (NGO) applied for judicial review of the decision to refuse a licence on a variety of legal grounds at the heart of which was the contention that the defendant treated buzzards and other raptors differently from other wild birds making it far harder to satisfy the defendant that the statutory conditions for the issue of a licence had been met. It was contended that that led to an unreasonable decision based on unjustified inconsistences in the treatment of raptors and other birds equally protected, based on an undisclosed policy to apply more exacting tests and evidential standards.
The claimant also argued that the claim fell within the scope of the cost protection of the Aarhus Convention. The defendant contended that, because the challenge was to a refusal of the licence, it could not be an Aarhus claim. A refusal of a licence would not contravene provisions of national law relating to the environment.
Held: The application was granted.
(1) The defendant’s decision to refuse a licence was unlawful because it had made the application of the derogation in Council Directive 2009/147/EC (the Birds Directive) transposed into the 1981 Act excessively difficult, so as to render it nugatory in relation to the claimant’s applications. The defendant had used its power in a way which undermined the purpose for which they were given, which was to give effect to the balance struck in the Directive and the Act between the protection of wild birds and preventing serious damage to livestock. It was thereby beyond the powers given to it and the defendant had assumed a much broader discretion than it had. The refusal was based on an unlawful policy, whether or not described as such, which formed the clear and regular basis for decisions on raptor applications in relation to livestock. The derogation had been rendered excessively difficult to operate and the decision was unlawful and would be quashed.
(2) CPR 45.41(2) provided for fixed costs to be payable by the unsuccessful party in an Aarhus Convention claim which was “a claim for judicial review of a decision, act or omission all or part of which was subject to the provisions of the [Aarhus Convention], including a claim which proceeds on the basis that the decision, act or omission or part of it, was so subject”. Article 1 of the Convention provided, amongst other things, that in order to contribute to the protection of the right of every person to live in an adequate environment, each party should guarantee the rights of access to justice in environmental matters in accordance with the provisions of the Convention. The definition of “environmental information” was very broad and what it meant for environmental matters was equally broad and covered decisions on applications for licences to shoot birds for whatever permissible justification.
The right of access in article 9(3) to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities, which contravened provisions of national law relating to the environment, did not apply only where the claim succeeded in establishing a contravention; it included a challenge founded on the contention that there had been such a contravention.
(3) On its face, the present claim fell within CPR 45.41. It was claim for judicial review of a decision which was subject to the Aarhus Convention because the decision was made in respect of powers in national law relating to the environment, the 1981 Act and the Birds Directive which, for the purposes of article 9(3) was also a national law relating to the environment. There was nothing in the language of CPR 45.41 or in the definition of environmental matters which could support the distinction drawn by the defendant. A decision which was said to be an unlawful application of a restriction on a derogation or permissive power was just as much a contravention of the national law as one which unlawfully failed to apply a restriction as required by the same national law. The claimant was clearly a member of the public for those purposes.
(4) It had been conceded that a challenge to the grant of a licence would fall within the Convention. Aarhus did not provide for a further significant public benefit test for those cases which did fall within it. There was a significant public benefit in decisions on national environmental law being lawful and therefore in their lawfulness being tested readily by individuals. The Convention was not just for the disinterested environmental environmentalist or national body but must have recognized that many individuals or ad hoc groups of individuals would be concerned with decisions which affected them personally, as it affected their enjoyment of their property, leisure, area or interest: Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012; [2014] 3 EGLR 1; [2014] EGILR 46 considered.
James Maurici QC and Richard Moules (instructed by Gordons LLP) appeared for the claimant; Stephen Tromans QC and Colin Thomann (instructed by Natural England) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read the transcript of R (on the application of McMorn) v Natural England