Sea defences – Sites of special scientific interest (SSSI) – Special protection area (SPA) – Section 28 of Wildlife and Countryside Act 1981 – Respondent building defence to protect home from sea erosion – Appellant body confirming notification of SSSI to preserve scientific value of site – Respondent seeking judicial review – High Court allowing claim in part — Appellant not acting ultra vires in designating SSSI but failing to assess implications of site as “plan” under Habitats Directive – Whether court erring in law — Appeal allowed – Cross-appeal dismissed
The respondent lived on an area of land by the North Sea that was close to a site of special scientific interest (SSSI). The land was being eroded by the sea and, fearful for their properties and at their own expense, the respondent and other residents built a barrier between the cliffs and the sea. The barrier was successful, but because of the continuing erosion, it needed to be maintained.
As part of its nature conservation function, the appellant organisation had a duty, under section 28 of the Wildlife and Countryside Act 1981 to identify SSSIs. It considered that the sea defence barrier compromised the scientific value of the site by impeding access to the cliff face and encouraging vegetation. In 2005, it decided to protect the site by enlarging the SSSI to include an area of up to 225m on the landward side of the cliffs, which included the respondent’s property. The respondent was notified of the designation and informed that any maintenance and repair of the sea defence would require the appellant’s consent, which it declined to give.
The respondent sought judicial review of the appellant’s decision to notify and confirm that part of the site that comprised approximately 1km of the 12km stretch of coastline within the SSSI; the validity of the SSSI that applied to the remainder of the site was not challenged. The local authority attended the hearing as an interested party to support the respondent.
The respondent contended that: (i) the appellant had acted ultra vires in designating the disputed land as an SSSI since, inter alia, leaving the cliffs to erode by the unrestrained operation of natural processes did not constitute nature conservation (ground A); and (ii) the decision was invalid because the appellant had failed to undertake an appropriate assessment of the implications of the SSSI as a “plan or project” within article 6(3) of Council Directive 92/43/EEC (the Habitats Directive) (ground G).
The High Court rejected ground A but granted judicial review and quashed the confirmation of the site as an SSSI on ground G. The appellant appealed against the decision on ground G and the respondent cross-appealed on ground A.
Held: The appeal was allowed and the cross-appeal was dismissed.
(1) The judge had correctly rejected the respondent’s challenge to the appellant’s decision on ground A. Even if it was assumed that the term “conservation” in section 28G(2) of the 1981 Act meant “preservation”, allowing nature to take its course would “preserve” the exposure of, for instance, sediments and fossils; hindering erosion would be harmful because that would obscure deposits of geological interest. The 1981 Act did not define “conservation”, and the parties could not point to a definition in any other enactment. Whatever “conservation” meant in other contexts, allowing natural processes to take their course by not preventing or impeding them by artificial means, would be a well-recognised conservation technique in the field of nature conservation. Conservation was not necessarily the same as preservation, although, in some circumstances, preservation might be the best way to conserve. Whether that was so in any particular case would be a matter for the professional judgment of the body whose statutory duty it was to conserve.
(2) However, the judge had erred in his conclusions on ground G. A notification package of an SSSI under section 28 of the 1981 Act was not a “plan” for the purposes of article 6(3) of the Habitats Directive. SSSIs were only one among many areas or features that might be designated because of their special environmental qualities. The common link was that they highlighted the special interest of the feature and imposed, or enabled the imposition of, more stringent controls than would otherwise be implemented by the normal planning process over any activities that might harm it, ensuring that before that authorisation of any plan or project could adversely affect it was authorised, full account would been taken of that special interest.
However, even if the notification of the SSSI did amount to a plan or project, a breach of article 6.3 was not established merely because, some time after the plan or project was authorised, a third party alleged that a potentially significant effect should have been considered. The party making the allegation had to produce credible evidence of a real rather than a hypothetical risk. In the instant case, no such evidence had been produced and article 6.3 had not been breached: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij C-127/02 [2005] All ER (EC) 353 considered.
(3) In any event, the court was not persuaded that, had the Habitats Directive been breached, it would have been appropriate for the court to exercise its discretion not to quash the confirmation of the SSSI on the unusual facts of the instant case. There was no evidence to contradict the conclusions in the report on which the appellant based its decision. The real purpose of the proceedings was not to secure a protection of the special protection area, but to enable the continued replenishment of the respondent’s sea defences. Moreover, the construction of the defence was not lawful and its continued replenishment would be lawful only if it were carried out with both planning permission and a consent under section 16 of the Coast Protection Act 1949: Berkeley v Secretary of State for the Environment [2000] 3 PLR 111 considered.
John Howell QC and Jane Collier (instructed by Browne Jacobson LLP, of Nottingham) appeared for the appellant; Gregory Jones and James Neill (instructed by Parkinson Wright, of Evesham) appeared for the respondent; Christopher Balogh (instructed by the legal department of Waveney District Council) appeared for the interested party.
Eileen O’Grady, barrister
