Sea defences – Sites of special scientific interest (SSSI) – Special protection area (SPA) – Section 28 of Wildlife and Countryside Act 1981 – Claimant building defence to protect home from sea erosion – Defendant body confirming notification of SSSI to preserve scientific value of site – Claimant seeking judicial review – Whether defendant acting ultra vires in designating SSSI – Whether defendant owing duty to consider effect on SPA – Claim allowed in part
The claimant lived on an area of land by the North Sea near to a site of special scientific interest (SSSI). The land was being eroded by the sea and, fearful for their properties, the claimant and other residents built a barrier between the cliffs and the sea at their own expense. The barrier proved to be successful but because of the effects of erosion it needed to be maintained.
The defendant organisation had a duty, under section 28 of the Wildlife and Countryside Act 1981, as part of its nature conservation function, to identify SSSIs. It considered that the sea defence barriers compromised the scientific value of the site by impeding access to the cliff face and encouraging growth of vegetation. In 2005, the defendant decided to protect the site by enlarging the SSSI to include an area of up to 225m on the landward side of the cliffs. This area included the claimant’s property. The claimant was notified of the designation and informed that any maintenance and repair of the sea defence would require the defendant’s consent, which it declined to give.
The claimant sought judicial review of the defendant’s decision to notify and confirm that part of the site that comprised approximately 1km of the 12km stretch of coastline within the SSSI. There was no challenge to the validity of the SSSI that applied to the remaining site. The local authority attended the hearing as an interested party to support the claimant’s application.
The claimant contended that: (i) the defendant 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 was not nature conservation; and (ii) the decision was invalid since the defendant 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) on a special protection area (SPA) covered by Council Directive 79/409/EEC (the Birds Directive) and the Conservation (Natural Habitats etc) Regulations 1994.
Held: The claim was allowed in part.
(1) The notification and subsequent confirmation of the SSSI as it applied to the disputed area was not ultra vires. Conservation was a dynamic concept that could involve keeping things as they were, but did not necessarily do so. It might also involve allowing natural processes to take their course, as in the case of erosion by a river, climatic forces, or the sea, and similar considerations would apply when the area of land in question was of special interest by reason of its flora or fauna: R (on the application of Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908; [2003] Env LR 3 and R (on the application of Fisher) v English Nature [2004] EWCA Civ 663; [2004] 3 PLR 98 considered.
(2) To the extent that the notification and confirmation of the SSSI included a formal statement of an intended course of future action it was a “plan” within the meaning of article 6(3) of the Habitats Directive. As such, article 6(3) required it to be subject to an appropriate assessment of its implications for the SPA in view of that site’s conservation objectives. That did not take place. Accordingly, on the evidence, the risk of a significant effect on the SPA’s conservation objectives could not be objectively excluded: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (C127/02) [2005] All ER (EC) 353 considered.
Moreover, the court was not entitled retrospectively to dispense with the requirement of an appropriate environmental assessment on the ground that the outcome would have been the same: Berkeley v Secretary of State for the Environment [2001] 2 AC 603 considered.
Gregory Jones and James Neill (instructed by Parkinson Wright, of Evesham) appeared for the claimant; John Howell QC and Jane Collier (instructed by Browne Jacobson, of Nottingham) appeared for the defendant; Christopher Balogh (instructed by the legal department of Waveney District Council) appeared for the interested party.
Eileen O’Grady, barrister
