Site of special scientific interest — Section 28 of Wildlife and Countryside Act 1981 — Confirmation of notification — Protection of wildlife — Confirmation of notification of SSSI for protection of stone curlew — Birds Directive 79/409/EEC — Special protection areas — Stone curlew notifiable protected bird species — Whether English Nature under duty to consider alternative special protection area status
In July 2001, the defendant, English Nature, confirmed the notification of an area of agricultural land as a site of special scientific interest (SSSI), under section 28 of the Wildlife and Countryside Act 1981, on the ground that the site had been notified for its internationally important population of stone curlew. This bird species was identified as being of European significance, requiring special measures of conservation under Council Directive 79/409/EEC (the Birds Directive). The claimant landowners challenged that decision, contending, inter alia, that English Nature had: (i) acted irrationally and had failed to take into account material considerations; (ii) exceeded its jurisdiction; and (iii) breached section 6 of the Human Rights Act 1998 in that it had acted in a way that was incompatible with the claimants’ rights under Article 1 of the First Protocol to the European Convention on Human Rights. The claimants contended that, under the Birds and the Habitat Directives, a special protection area (SPA) imposes fewer constraints upon landowners than an SSSI; the stone curlew could be protected without need for the notification and confirmation of an SSSI by leaving it to the Secretary of State to include the relevant area within an SPA or by concluding voluntary agreements with the landowners.
Held The application was dismissed.
English Nature has a duty, under section 28(1) of the 1981 Act, to notify an area of land if it holds the opinion that the statutory criteria have been satisfied. Section 28(1) affords scope for judgment: it affords no scope for discretion. English Nature cannot decline to notify or to confirm (and, accordingly, displace section 28 and the statutory scheme of which it forms part) by reason of a preference for an application of some other statutory or non-statutory scheme, or by reason of any objection to or dissatisfaction with the legal consequences of notification or confirmation. In particular, English Nature cannot refuse to confirm on the ground that it considers that the population of stone curlew would be protected |page:42| more effectively, and in a way occasioning less interference by landowners with the peaceable enjoyment of their possessions, by voluntary agreements with landowners or by the Secretary of State’s classification of the relevant area of land as part of an SPA. The notification has immediate legal effect. English Nature must, thereafter, within nine months, decide whether to withdraw the notification or to confirm it, or it will lapse: see [20]. The duty of English Nature to exercise its own judgment, and to notify and confirm in accordance with its expert judgment, cannot and should not be qualified by its own past practice or by provision in the guidelines produced by the Joint Nature Conservation Committee: see [21]. It was wrong to suggest that it is legally irrelevant or impermissible for English Nature to take into account, in deciding whether an area is of special interest by reason of its bird population, the fact that it considers that the area is, or forms a part of, one of the most suitable territories in number and size for the conservation of birds that are recognised as being of special significance at the European level as well as in national legislation: see [37]. English Nature applied and determined the issue of confirmation by reference to the statutory criteria and for the reason that it gave, namely to protect stone curlew. It was entitled to regard this as a relevant consideration in the exercise of judgment as to whether the statutory criteria had been satisfied that the area of land in question was appropriate to be classified as an SPA. In any event, even if it had ignored this consideration, it would have reached the same conclusion: see [38]. European law had not been breached. The provisions for notification and confirmation are essential parts of a regime: (a) designed by the legislature to ensure that informed decisions are made before potentially damaging (and irreversible) actions are taken; and (b) to be brought into play in appropriate situations by English Nature; but (c) leaving the landowners free at all times to apply to be absolved from the bonds imposed upon them. The legislature was entitled to take a choice in this area, and it was likewise open to English Nature to make the decision: see [46].
Commission of the European Communities v France C96/98 [1999] ECR I-8531
Fredin v Sweden A/192 (1991) 13 EHRR 784
Holder v Law Society [2003] EWCA Civ 39; [2003] 1 WLR 1059; [2003] 3 All ER 62
James v United Kingdom A/98 (1986) 8 EHRR 123
Oerlemans v Netherlands (1989) 62 DR 200
R (on the application of Aggregate Industries UK Ltd) v English Nature; sub nom Aggregate Industries UK Ltd v English Nature [2002] EWHC 908 (Admin); [2003] Env LR 3
R v Nature Conservancy Council, ex parte London Brick Co Ltd [1996] JPL 227; [1996] Env LR 1
Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P&CR 306; [1988] 3 PLR 25
Tre Traktorer AB v Sweden A/159 (1991) 13 EHRR 309 |page:43|
This was an application by the claimants, Patrick Fisher and the Trustees of the Hon PV Fisher’s Children’s 1986 Settlement, seeking to quash, by way of judicial review, a decision of the defendant, English Nature, confirming the notification of the Breckland Farmland, Norfolk and Suffolk site of special scientific interest under section 28 of the Wildlife and Countryside Act 1981.
LIGHTMAN J:
[1] The claimants on this application challenge the decision (the decision) of the defendant, English Nature, to confirm the notification of the Breckland Farmland, Norfolk and Suffolk site of special scientific interest (the SSSI) (which includes land belonging to the claimants) under section 28 of the Wildlife and Countryside Act 1981 (the 1981 Act). On the same day that English Nature confirmed notification of the SSSI, English Nature confirmed the notification of the Bramshill site of special scientific interest, which was the subject of a challenge dismissed by Forbes J in R (on the application of Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908 (Admin); [2003] Env LR 3.
[2] English Nature confirmed the notification of the SSSI under section 28 on 11 July 2001, and communicated the decision confirming the notification by letter dated 3 August 2001. In confirming the notification, the decision confirmed the designation of over 13,335.7ha of intensively farmed arable land as an SSSI. The reason given for the notification and confirmation was stated as follows: ”This site is notified for its internationally important population of stone curlew.” The notification specified five types of operation likely to damage the features of special interest (OLDs) as requiring the prior consent of English Nature:
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Stand |
Type of operation |
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Ref No |
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10. |
Killing, injuring, taking or removal of stone curlews, or their eggs and nests. Intentional or reckless disturbance of stone curlews, their eggs or chicks.* |
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12. |
Long term afforestation of farmland in excess of 5 hectares. |
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20. |
Extraction of minerals including hard rock, sand and gravel, topsoil and subsoil except for on farm use. |
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21. |
Construction of roads, or the laying, maintenance or removal of pipelines and cables, above or below ground, except for agricultural or forestry purposes. |
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23. |
Erection of permanent buildings or reservoirs, or the |page:44| undertaking of engineering work, including drilling, except for agricultural or forestry purposes. |
*Accidental disturbance through agricultural and game management, for example, is not regarded as intentional or reckless disturbance.
[3] Council Directive 79/409/EEC (the Birds Directive) on the conservation of wild birds, as adapted by the Habitats Directive, identifies species listed in Annex 1 that require special conservation measures concerning their habitat, in order to ensure their survival and reproduction in their area of distribution. The stone curlew is one of those species. The Birds Directive requires member states to classify ”the most suitable territories in number and size… for the conservation of”’ that species as special protection areas (SPAs). SPAs must, under national law, be provided with a legal protection regime that is capable in particular of ensuring both the survival and reproduction of the species: see Commission of the European Communities v France C96/98 [1999] ECR 1-8531. The Secretary of State has the function of classifying SPAs in this country, which he performs with the advice of English Nature. English Nature has proposed to the Secretary of State that he include the SSSI (together with other areas) within an SPA. This proposal is supported by the claimants. The Secretary of State is minded to do so, but has decided to defer his decision until the outcome of this application is known. In the meantime, the SSSI is merely included within a proposed SPA (a pSPA).
[4] The challenge made on this application is to the decision so far as it confirms the notification. There is no challenge to the notification itself or to the OLDs. The grounds of the challenge are that English Nature: (1) acted irrationally and failed to take into account material, and only material, considerations; (2) exceeded its jurisdiction; and (3) in breach of section 6 of the Human Rights Act 1998, acted in a way that was incompatible with the claimants’ rights under Article 1 of the First Protocol to the European Convention on Human Rights. The claimants were granted permission to challenge the decision on the ground that English Nature had failed to provide a scientifically justified basis for the area of land that it notified, but the claimants did not pursue this ground at the hearing.
[5] The grievance of the claimants underlying this application is that an SPA imposes less constraints upon, and consequently is less onerous to, landowners than an SSSI, and that the stone curlew could be protected without any need for the notification and confirmation by leaving it to the Secretary of State to include the area in question within an SPA or by concluding voluntary agreements with the landowners. A question to be decided is whether, under section 28, it was open to English Nature to decide not to confirm the notification of the SSSI for this reason.
Ornithological background
[6] Stone curlew are a migratory species nesting from March onwards in any year, and migrating to southern Spain or North Africa from October. The birds nest from March each year in cultivated land that has plenty of bare ground and fairly short vegetation, as they prefer an open, |page:45| relatively unobstructed vista, so as to be aware of predators, and stony ground so that their eggs are camouflaged. The locations of the nests of the stone curlew may vary from year to year, and nesting attempts at different locations in one year are commonplace. Field work has found that stone curlew may travel up to 3km from the nest site to forage. Stone curlew are very sensitive to recreational disturbance and benefit from lack of recreational access on agricultural land. They are not usually affected by mechanised agricultural operations.
[7] The stone curlew is a species identified as being of European significance and as requiring special measures of conservation in the Birds Directive. It is a species that is protected under Part I of the 1981 Act by special penalties at all times. It is also a priority species under the UK Biodiversity Action Plan.
[8] The stone curlew is an extremely scarce bird species nationally. Numbers have fallen by 85% in the past 50 years and by more than 50% since 1960. The British population was estimated to be 215 pairs in 1998 and 234 pairs in 1999. It is one of the rarest breeding bird species in Great Britain.
[9] The Joint Nature Conservation Committee (JNCC), established by English Nature, Scottish Natural Heritage and the Countryside Council for Wales under section 128(4) of the Environment Protection Act 1990, produced guidelines for the selection of sites as SSSIs, which are, in large part, those published by the Nature Conservancy Council in 1989. The guidelines indicate that localities that normally contain 1% or more of the total British breeding population of any native species are eligible for selection and that, in view of the mobility of some species, the guidelines apply to sites used for other essential activities (such as feeding) as well as nesting sites. Two pairs of stone curlew represent approximately 1% of the Great Britain population of that species.
[10] Around 95% of the UK population is found in two areas: the Norfolk/Suffolk Brecklands and Wessex. Most are in the Brecklands area. That area suits the stone curlew because of the big open fields, mimicking the birds’ preferred habitat of open stony heaths, and the amount of bare land resulting from spring sown crops.
[11] The criteria for the selection of SPAs for birds and those for SSSIs for birds are similar. The selection guidelines for SPAs suggest that an area that is used regularly by 1% or more of the Great Britain population of a species listed in Annex 1 to the Birds Directive is likely to qualify as an SPA. The guidelines state, in relation to the Birds Directive and SPAs:
Any site that supports nationally important numbers of an Annex I species or a migratory bird species (at any season of the year) should be given consideration as to whether it should be proposed as an SPA. Some sites holding lower numbers of some Annex I species may also need consideration in view of the requirement to maintain distributions. Any such site should qualify as a potential SSSI. These SSSI selection guidelines have been written to embrace such special interest. |page:46|
[12] In January 2000, English Nature submitted proposals to the Secretary of State for a Breckland SPA. In 1998, the Breckland pSPA supported some 142 pairs of stone curlew (66% of the Great Britain population) and, in 1999, it supported 159 pairs (68%). A large proportion of the Breckland pSPA stone curlew population nests on arable land. In 2000, arable land supported 61% of the first choice stone curlew nests, and 59% of the total fledged in that area was on arable land.
[13] The SSSI falls within the larger Breckland pSPA. The SSSI itself supported some 102 pairs of stone curlew in 1999 (44% of the Great Britain population). The SSSI would qualify on its own as an SPA under the relevant criteria.
Statutory provisions
[14] English Nature (until January 2001, known as the Nature Conservancy Council for England) is a specialist nature conservation body. Section 131 of the Environmental Protection Act 1990 provides that English Nature shall have ”nature conservation functions”, and defines ”nature conservation” as ”the conservation of flora, fauna or geological or physiographical features”. Section 131 also provides that it is the duty of English Nature, in discharging its conservation functions, to take appropriate account of actual or possible ecological changes.
[15] Section 28 vests English Nature with responsibilities in respect of an SSSI. Section 28 (which appears in Part II of the 1981 Act, headed ”Nature Conservation”), as amended by the Countryside and Rights of Way Act 2000 (the 2000 Act), reads as follows:
[28]. Sites of special scientific interest.
.- (1) Where the Nature Conservancy Council are of the opinion that any area of land is of special interest by reason of any of its flora, fauna or geological or physiographical features, it shall be the duty of the Council to notify that fact –
(a) to every local planning authority in whose area the land is situated;
(b) to every owner and occupier of any of that land; and
(c) to the Secretary of State.
…
(3) A notification under subsection (1) shall specify the time (not being less than three months from the date of the giving of the notification) within which, and the manner in which, representations or objections with respect to it may be made; and the Council shall consider any representation or objection duly made.
(4) A notification under subsection (1)(b) shall also specify
(a) the flora, fauna, or geological or physiographical features by reason of which the land is of special interest, and
(b) any operations appearing to the Council to be likely to damage that flora or fauna or those features,
and shall contain a statement of the Council’s views about the management of the land (including any views the Council may have about the conservation and enhancement of that flora or fauna or those features).
(5) Where a notification under subsection (1) has been given, the Council may within the period of nine months on which the notification was served on the Secretary of State either |page:47|
(a) give notice to the persons mentioned in subsection (1) withdrawing the notification; or
(b) give notice to those persons confirming the notification (with or without modifications);
(6) A notification shall cease to have effect
(a) on the giving of notice of its withdrawal under subsection (5)(a) to any of the persons mentioned in subsection (1); or
(b) if not withdrawn or confirmed by notice under subsection (5) within the period of nine months referred to there, at the end of that period.
(The provision in subsection (4) for a statement of the council’s views was added by the 2000 Act.)
[16] Section 28D of the 1981 Act provides that, if English Nature is of the opinion that all or any part of an SSSI is no longer of special interest by reason of any of the matters mentioned in section 28(1), it may decide to notify that fact, in which case the notification under section 28(1)(b) ceases to have effect.
[17] Notification has a number of legal consequences. In particular:
(1) English Nature may enter into an agreement with the owners, lessees and occupiers of any land within such an area for the purpose of conserving or restoring the matters by reason of which the area is of special interest (under section 15 of the Countryside Act 1968), imposing restrictions upon the exercise of the rights of those persons and for the carrying out of work or the doing of such other things on the land as may be expedient. English Nature may acquire all or any part of an SSSI compulsorily, if it is satisfied that it is unable to conclude an agreement as to the management of the land on reasonable terms, or if any such agreement is breached in such a way that the land is not being managed satisfactorily;
(2) English Nature may formulate a ”management scheme” for conserving or restoring the matters by reason of which the area is of special interest, following the procedure set out in section 28J of the 1981 Act. If it appears to English Nature that any owner or occupier of land is not giving effect to a provision of a management scheme, that it is unable to conclude an agreement with him as to its management in accordance with the scheme and that, as a result, any such matters are being inadequately conserved or restored, it may serve a ”management notice” on him under section 28K of the 1981 Act. Such a notice may require him to carry out such work on the land or to do such other things with respect to it as are reasonably required to ensure that that the land is managed in accordance with the management scheme. Failure to comply with any requirement of a management notice without a reasonable excuse is a criminal offence, and entitles English Nature to do what is required;
(3) the owner or occupier of any land included in an SSSI may not carry out, or cause or permit to be carried out, on that land any operation specified in the notification itself as being likely to damage the matters by reason of which the area is of special interest, unless English Nature has been given notice of a proposal to carry it out (specifying its nature and the |page:48| land upon which it is proposed to be carried out), and the operation is carried out either in accordance with the terms of a relevant agreement with English Nature, a management scheme or a management notice, or with English Nature’s written consent. English Nature’s decisions in relation to such consents may be the subject of appeal to the Secretary of State. A person who contravenes these requirements without a reasonable excuse is guilty of a criminal offence. Such an excuse may exist if the operation carried out is an emergency operation, if it was authorised by certain planning permissions or if it was permitted by certain public bodies in other circumstances; and
(4) other public bodies are required to take reasonable steps in the exercise of their own functions, in so far as their exercise is likely to affect matters by reason of which the area is of special interest, to further the conservation and enhancement of those matters, provided that such steps are consistent with the proper exercise of their own functions. Such public bodies are also required to follow a specific procedure designed to protect such matters, which requires them to take into account English Nature’s advice, if they propose to carry out, or to give any consent for, any operations that are likely to damage such matters. It will be apparent that the consequences of notification go far beyond anything that can be achieved by voluntary agreement of affected landowners.
Statutory construction
[18] I should first say a few words on the construction of sections 28 and 28D. English Nature has a duty, under section 28(1), to notify an area of land if it holds the opinion that the statutory criteria are satisfied. If (for example) English Nature is of the opinion that an area of land is of special interest because of the bird population that it supports, it must notify. Section 28(1) affords scope for judgment: it affords no scope for discretion. The notification has immediate legal effect. English Nature must, however, thereafter, within nine months, decide whether to withdraw the notification or to confirm it (with or without modifications), or it will lapse. Although section 28(5), in setting out the alternative courses available to English Nature, uses the word ”may”, a term that ordinarily connotes a discretion, notwithstanding the obiter dictum in R v Nature Conservancy Council, ex parte London Brick Co Ltd [1996] Env LR 1 to the contrary, as it appears to me, if English Nature continues to be of the opinion that the statutory criteria are satisfied, the discretion can lawfully be exercised only one way, that is in favour of confirming the notification. It cannot lawfully withdraw the notification or allow it to lapse. For any other course than confirmation would bring into play once again the immediate duty of English Nature to make the notification, and the legislature cannot sensibly have intended this roundabout method of continuing the legal consequences of the continuing opinion of English Nature that the statutory criteria are satisfied.
[19] The statutory scheme requires English Nature, at two distinct and successive stages, to exercise its expert judgment on three matters: (1) to determine whether the statutory criteria are satisfied; and, if so, (2) to |page:49| specify the flora, fauna or geological or physiological features by reason of which it is of special interest; and (3) to specify any operations likely to damage the flora, fauna or those features. The first stage is the notification stage, and the second is the confirmation stage when the decisions at the notification stage require reconsideration in the light of objections, representations and further information received in the interim. English Nature, in determining whether the area is of special interest for any of the four possible statutory reasons, will have regard to the fact that the judgment is called for in the context both of their nature conservation function and of legislation directed at nature conservation and designed to place constraints on landowners required in the interests of such conservation. There is no requirement that the land is of national importance: cf section 29(2)(b) of the 1981 Act, since repealed by the 2000 Act.
[20] In view of the arguments before me, I must underline one consequence of the fact that the exercise required of English Nature is exclusively one of judgment. If English Nature is of the opinion that the statutory criteria are satisfied, it has no discretion to decline to notify or to confirm (and, accordingly, displace section 28 and the statutory scheme of which it forms part) by reason of a preference for application of some other statutory or non-statutory scheme, or by reason of any objection to or dissatisfaction with the legal consequences of notification or confirmation. In particular, English Nature cannot refuse to confirm (as submitted by the claimants) because it considers that the population of stone curlew would be protected more effectively, and in a way occasioning less interference with the peaceable enjoyment of their possessions by landowners, by voluntary agreements with landowners or by the classification by the Secretary of State of the area of land in question as part of an SPA.
[21] Further, it is clear (notwithstanding submissions by the claimants to the contrary) that the duty of English Nature to exercise its own judgment and to notify and confirm in accordance with its expert judgment cannot, and should not, be qualified by its own past practice or by provisions in the guidelines. The guidelines may inform English Nature in reaching its judgment, but not constrain. This fully accords with the judgment of Forbes J in Aggregate, who made clear that, once the current members of the council of English Nature came to the conclusion that a site did satisfy the statutory criteria, they were duty bound to act in accordance with their own opinion, whether or not this involved a departure from a previous decision or a change in policy.
[22] As I have already said, it is to the existence of the legal consequences of the notification and confirmation that the claimants take objection as unfair and unnecessary interferences with their rights of ownership, and which (they contend) are avoidable by classification as an SPA instead of confirmation as an SSSI as the statutory vehicle for bird protection, or by recourse to non-statutory means, namely agreements with the landowners. In my view, for the reasons that I have given, these grounds of objection are not legally tenable. English Nature is statutorily obliged to apply the criteria laid down in section 28. Whether the area |page:50| satisfies the criteria of an SSSI cannot be affected, still less determined, by the existence (let alone the possible future existence) of what may appear more attractive alternative courses of action (eg classification as an SPA), nor can their existence lawfully deflect English Nature, if satisfied that the criteria are satisfied, from the course of notification and confirmation.
Challenges to decision
[23] It is clear from the minutes of its meetings, and beyond dispute, that the reason for the resolutions of English Nature to notify and to confirm the notification was the internationally important population of stone curlew: on both occasions, English Nature stated this was the reason for its resolution. It is, accordingly, incumbent on the claimants to establish grounds of challenge to what, on the face of it, is a valid decision to confirm for this reason.
[24] Before I consider in turn each of the grounds for which the claimants were granted permission to apply for judicial review, I must consider two matters upon which the claimants addressed me at the hearing. The first was that the members of the council of English Nature who made the decision were unaware of the terms of the guidelines or had failed to have in mind those provisions. No such allegation was made in the application to the court and no evidence was adduced in support of it. None the less, the claimants, in the course of the hearing, made submissions to the effect that the failure of English Nature to have regard to provisions of the guidelines vitiated the decision. In my judgment, it is not open to the claimants to advance such a case. If the claimants had included such a case in their application to the court, English Nature would have been placed on notice of this fact when it prepared its evidence. It could have put forward evidence by the members on this issue. There was no occasion to do so, as this was not part of the case that it had to address. I should add that I am fully satisfied that, in the absence of evidence to the contrary, I should assume that, in accordance with their duty, the members familiarised themselves with the guidelines.
[25] The second is that, on the day prior to this hearing, the claimants gave notice of intention to apply for permission to rely upon an additional ground, namely that, in deciding to confirm the notification, English Nature took no account of serious concerns about the SSSI expressed by the Ministry of Agriculture, Fisheries and Food (MAFF). The claimants explained that they had only just received from English Nature a letter disclosing the existence of such concerns on the part of MAFF and, accordingly, the possibility of challenge on this ground. English Nature opposed the application. It told me that the anxieties expressed at one stage by MAFF had been allayed at a meeting with English Nature prior to the decision, and that it had so informed the claimants by letter prior to the hearing. English Nature contended that: there was no evidence to the contrary; there was nothing in the point; there was no relevant correspondence with MAFF on this issue to be disclosed; and it was far too late to raise the matter at the hearing. On the material before me, no reasonable grounds exist for the belief that there is any substance in this |page:51| ground of complaint. (I may add that the claimants should surely have pursued inquiries with MAFF prior to the hearing if they wished to challenge or question English Nature’s statement in its letter regarding its meeting with MAFF.) The issue could not be explored further without an adjournment; I do not think that the adjournment would serve any useful purpose; and, in the circumstances, justice does not require or justify allowing the claimants to pursue this objection on this application.
Irrationality
[26] The challenge to the decision on grounds of irrationality rests on a number of separate grounds. The first is that English Nature departed from previous practice between 1994 and 2000 of not granting SSSI status in case of extensive areas of conventional plantation or to habitats for migratory birds or birds that nested in areas only sporadically. But English Nature decided, in February 2000, not to be bound in future by this practice, and rightly so, for its duty required it to accept no such constraints on the exercise of the judgment committed to it. This decision in February 2000 has never been challenged in judicial review proceedings, no doubt because any such challenge was doomed to failure. I cannot see how the earlier (later abandoned) practice is of any assistance.
[27] The second is that English Nature departed from the guidelines. I have already held that English Nature, far from being legally bound by the guidelines, was legally bound to depart from the guidelines if they went beyond informing, and placed any constraint upon, the exercise of its judgment. But, going beyond this, I can find no departure from the guidelines. The guidelines advised care and caution before deciding to notify or to confirm largely artificial habitats for the reason of the presence of rare birds, and that croplands should not normally be selected, but in no way precluded the decision, and the evidence reveals that all due care was exercised (and, in any event, should be presumed to have been exercised) by English Nature in reaching the decision.
[28] The third (which is the most serious allegation) is that English Nature decided to confirm the notification, not on its merits, but to give effect to the wishes of the Secretary of State and to underpin the pSPA in this way and to improve the prospects that the Secretary of State would classify the SPA.
[29] This challenge requires consideration of two matters: (1) the relationship of designations or classifications as SPAs and SSSIs; and (2) the approach adopted by English Nature to designating the SSSI and the statements made by, on behalf of and to English Nature up to and including the meeting at which the decision was made.
(1) Relationship of designations as SPAs and SSSI
This application is not the occasion for any detailed examination of, or exegesis on, the relevant legislation (and, in particular, European legislation) relating to SPAs. In this context, it is important to bear in mind that there is, as yet, no SPA and (in particular, in the absence of an SSSI) |page:52| there may never be, and the performance of the duty of English Nature under section 28 cannot lawfully be deferred to await the exercise of jurisdiction by the Secretary of State to classify an SPA. It is sufficient for the purpose of this application to have in mind two matters. The first matter is that there are close links between the two statutory schemes. In this context, it is relevant to note that: (1) regulation 3 of the Conservation (Natural Habitats, etc) Regulations 19941 (the 1994 Regulations) provides that English Nature shall exercise its powers under section 28 so as to secure compliance with the Habitats Directive; (2) the guidelines, after referring to the international obligation to nature conservation in terms of site protection under (among other treaties) the Birds Directive and the Habitats Directive (transposed into English law by the 1994 Regulations), go on in para 3.2 to say:
It seems axiomatic that if an area, feature or species is of international importance, it must be of special interest in its total national occurrence. In these cases it is necessary to select all sites above a critical standard, and not to rely on choosing only exemplary areas in order to meet the international conservation obligation. This can apply to habitats which are extensive (eg blanket bog) and to species which are numerous… as well as to habitats and species which are localised and rare.
and (3) in Aggregate, Forbes J held that English Nature was to take into account ”the site’s function as part of a larger area of European importance”.
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1 SI 1994/2716
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[30] The second matter is the government’s views on the relationship between the two schemes. By letter dated 19 June 2003, the Treasury Solicitor confirmed to this court that: (1) ”the Government takes the view that the provisions of the Birds Directive with respect to SPAs, as adapted by the Habitats Directive, are transposed in part by the provisions of the 1981 Act relating to SSSIs, as supplemented and adapted by the provisions of the Habitats Regulations 1994”; (2) ”the Government’s view on the interrelationship of sites of international importance (such as SPAs) and SSSIs is as recorded by Forbes J in paragraph 25 of his judgment in Aggregate”; and (3) the government’s view on the question of whether an area should not be classified as an SPA unless it has also been notified as an SSSI was reflected in the same paragraph:
The Government would expect, as a matter of logic, a site appropriate for SPA designation to fulfil the criteria for SSSI notification. If a site being considered for SPA designation were to be regarded as not fulfilling the SSSI selection criteria, the Government would wish to reconsider the evidence supporting SPA candidature.
These clearly have been the thrust of the government’s views for some time, and were correctly understood as such by English Nature when the decision was made. |page:53|
(2) English Nature’s approach to designating the SSSI
[31] I have already traced the history of the current approach adopted by English Nature to notifying and confirming SSSIs. At no time between 1994 and 2000 did English Nature (or its statutory predecessors) regard the present site, or, indeed, any transitory habitats, as satisfying the requirements for an SSSI; and the guidelines stated that care should be exercised if the presence of rare birds is the only reason for considering a largely artificial habitat and that croplands should not normally be selected. In a word, caution was advocated in these cases. In February 2000, however, English Nature’s approach to determining the threshold for what counts as an SSSI changed fundamentally in relation to artificial habitats with transitory populations of bird. The decision of English Nature of that date to this effect has never been judicially challenged, and, for this reason (as well as its accord with section 28), plainly is valid and correct. None the less, the claimants contend that the reason for this fundamental change and for the decision was that English Nature reluctantly succumbed to pressure from the Department of the Environment, Transport and the Regions (DETR), as it then was, to notify and confirm the SSSI to underpin the pSPA, and that English Nature notified and confirmed in order to achieve the goal of the designation by the DETR of the Breckland SPA, a pre-condition for which was that English Nature notify and confirm the SSSI.
[32] In support of this contention, the claimants have referred me to: letters between English Nature and the DETR, and reports and papers to English Nature, reflecting the wish of English Nature at one time that there should be a SPA and not an SSSI; the insistence by the DETR that there should be an SSSI before the DETR classified the SPA, and that all SPAs are underpinned by SSSI notifications and confirmations; discussions between English Nature and the DETR as to the timing of the SSSI, and regard by English Nature as to the wishes of the DETR in this regard; and the expression of view by English Nature that it would not recommend for inclusion in the SPA land that it did not confirm as an SSSI.
[33] Whether the claimants’ contention is correct in respect of the decision must be determined by reference to what was said and done at the critical meeting at which the decision was made. The events preceding the meeting put the court on its guard to scrutinise with care whether, in its deliberations, English Nature asked itself and decided the right question, namely whether the statutory criteria had been satisfied: they do not determine the issue. I approach the issue mindful of the guidance provided by Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25, that a decision should, in general, be quashed if, by way of error, a relevant consideration is not taken into account or an irrelevant consideration is taken into account unless the decision maker was bound on the facts to have reached the same conclusion if the error had not occurred.
[34] At the meeting of the council of English Nature held to consider confirmation of the notification: |page:54|
(i) a representative of the claimants, Mr Falcon, addressed the council. He stated that it was not legally necessary to ”designate” and that ”the existence of itself of an SPA does not in itself obligate the United Kingdom Government to create an SSSI”;
(ii) the council of English Nature then received the legal advice given to it by the solicitor that it had employed for that purpose – Mr Richard Barlow – who stated that:
Council members must be satisfied that the land which is being notified is of special interest. Much work has been done to devise this package in a way which properly covers all the issues but also can protect that which is considered to be special. And so the decision for you is to apply the provisions of the Act to this land;
(iii) in the course of the council’s discussions, however, one member of the council (Mr Nicholas Woolley) said that he thought that the fact that the land ought to be part of an SPA ”in itself in the light of the English legislation and in the light of quite clear specific government direction to us… justifies and requires this land to be designated as an SSSI”;
(iv) thereupon another member of the council, Mr Stephen Tromans (a well-known barrister who specialises in environmental law), stated his view that, while:
the fact that land may be an SPA is clearly relevant to our decision, I don’t think… [we can] say that… automatically it must pass the SSSI test. I think that we have to make up our own minds on that on the information available because that’s what the legislation requires us to do.
(v) in response to a question by another member of the council about the relationship between SPAs and SSSIs, the chairman stated that Mr Tromans had answered it, but the chairman none the less asked Mr Tromans to say it again as it was an important point;
(vi) Mr Tromans then stated that:
It seems to me that whatever Government policy may be as to the linkage between SPAs and SSSIs, the question for us this morning as Richard Barlow said is whether the land meets the criteria of the legislation that we are dealing with. We can’t regard ourselves as being bound by Government policy to say that something is a SSSI if we don’t think in our heart of hearts that it really is. I think that is the key to it.
(vii) the chairman stated that he thought that was ”very clear” and invited Mr Woolley to speak;
(viii) Mr Woolley then sought to explain that his view was that:
if we have an area of land whether it be large or small, if it is of sufficient international importance that it should be declared an SPA. Surely to goodness if it’s of such international importance it is very hard to believe that it isn’t of sufficient national interest. If the science is there to back up the international interest it surely is there in abundance to back up the national interest. |page:55|
(ix) the minutes of the meeting record:
(a) ”Council discussed the issues noting that a decision was required upon the existence of special interest at the site and concluded that such special interest is in place on the Breckland Farmland site”;
(b) ”the reason for the notification (which the Council of English Nature was invited to, and did, confirm) was that ‘this site is notified for its internationally important population of stone curlew…”’
[35] The claimants challenge the decision on the ground that what they describe as the earlier ”mistaken approach” ”was not cured by the comments of Mr Tromans” because: (i) ”the flaws in the decision making process were by that date so entrenched that they could not have been cured without a fundamental re-evaluation of whether or not it was appropriate to designate”; (ii) there was ”confusion amongst members of the Council”; (iii) Mr Woolley treated notification as ”a foregone conclusion” given that the area was part of a pSPA; and (iv) even Mr Tromans thought that the fact that the land was within an SPA might be relevant to the decision. I totally reject this challenge.
[36] It is manifest from the transcript and the minutes of the meeting that the members of the council were advised and recognised that they had to determine whether the land notified was of special interest as stated in section 28. It was not simply Mr Tromans who gave that advice; he was endorsing the advice provided previously by the council’s own solicitor, given after representations made by a representative of some of the landowners affected about the relationship between SPAs and SSSIs. The chairman found Mr Tromans’ advice very clear, and Mr Woolley did not suggest that, in the light of it, he remained of the view that there was any legal requirement as such to notify if the land was in a SPA. There is no reason to doubt (and the claimants have not alleged that the minutes are untruthful when they state) that the council had noted that ”a decision was required upon the existence of special interest at the site” and that they had concluded that there was such a special interest. The council accordingly addressed themselves to, and answered, the correct statutory question, and confirmed the reason why the area of land had special interest.
[37] In my judgment, it is wrong to suggest that it is legally irrelevant or impermissible for English Nature to take into account, in deciding whether an area is of special interest by reason of the bird population it may support, the fact it considers that that area is (or forms a part) of one of the most suitable territories in number and size for the conservation of birds that are recognised as being of special significance at a European level, as well as in national legislation. Indeed (as I have already said) Forbes J held in Aggregate that English Nature was entitled to take into account ”the site’s function as part of a larger area of European importance”. I refer also to the matters and the passage in the guidelines set out in [11] and [12] of this judgment.
[38] I see no reason to disagree with the government’s views as to the relationship between SPAs and SSSIs in terms of the transposition of the Birds Directive but whether or not those views are correct is immaterial. |page:56| What is clear is that: English Nature applied and determined the issue of confirmation by reference to the statutory criteria and for the reason that it gave, namely to protect stone curlew and for no such collateral reason as the claimants allege; and, so far as it regarded it as a relevant consideration in the exercise of its judgment as to whether the statutory criteria had been satisfied that the area of land in question was appropriate to be classified as a SPA and that it had made a recommendation to this effect to the Secretary of State, that was a view it was fully entitled to take. But even if I am wrong, and it was not entitled to treat as a relevant consideration the fact that the site was, in its view, appropriate to be classified as a SPA, there can be no doubt that, even if English Nature had ignored this consideration, it would have reached (and, indeed, could only have reached) the same conclusion, namely that the statutory criteria under section 28 had been satisfied.
Jurisdiction
[39] The claimants contend that it was beyond the range of reasonable meanings open to English Nature of the statutory formula ”a site of special interest by reason of its fauna” to designate the entirety of 13,335.70ha as an SSSI, where the reason for designation was the preservation and protection of the habitat for nesting and breeding of single pairs of stone curlew, which occupied the habitat only from March to October and which changed their sites from year to year with the rotation of crops. The claimants sought reinforcement of this argument by praying in aid the fact that the decision contradicted consistent practice to the contrary between 1994 and 2000, and departed from provisions in the guidelines. As I have already held, there were, in fact, no such departures from the guidelines, but whether or not this is so, as a matter of law, none of these considerations could preclude a determination by English Nature that the statutory criteria had been satisfied: rather, these are, at most, relevant considerations for English Nature to take into account in the exercise of the jurisdiction committed to it of deciding whether the statutory criteria had been satisfied and the area in respect of which it was satisfied. It, at all times, remained open to English Nature reasonably and sensibly to reach the conclusion that it did that the whole area was of special interest because of the support that it provided for such a significant proportion of such an important and rare bird species recognised as being of European significance: consider Aggregate at [132]. English Nature had to decide whether to confirm and, if so, how extensive the SSSI area had to be if it were to provide the requisite protection. The members visited the area between the dates of notification and confirmation, and applied their expertise and judgment. There is no basis upon which this court can or should substitute its judgment for that of English Nature. As Forbes J said in Aggregate, at [106(3)]: ”English Nature is far better placed and qualified than a court to make the requisite assessments and value judgments.” In this context, it is to be noted (as I said earlier) that the claimants, although granted permission to challenge the decision on the ground that English Nature had failed to provide a |page:57| scientifically justified basis for the land that it notified, did not pursue this ground, and there is, accordingly, no vulnerability or exposure to criticism of the decision on this ground.
Article 1
[40] Article 1 protects a person’s right to the peaceful enjoyment of his possessions but it goes on to provide that this protection does not impair ”in any way the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”. Section 6 of the Human Rights Act 1998 renders it unlawful for English Nature to act in a way that is incompatible with Article 1. The claimants accept that protection of stone curlew is a legitimate public interest justifying the imposition of restrictions on the use of their property. But they contend that English Nature’s decision to confirm the notification was incompatible with their Convention rights because it occasioned a disproportionate interference with the peaceful enjoyment of their possessions. In respect of that submission, I fully accept and adopt the answer given by Mr John Howell QC in his submissions.
[41] There are four possible matters upon which, in theory, an Article 1 complaint might focus. These are: (i) the confirmation of English Nature’s opinion; (ii) the confirmation of the specified OLDs; (iii) the effect of being within an SSSI under other statutory regimes; and (iv) being within an SSSI rather than a SPA.
[42] (i) An allegation that the confirmation of English Nature’s notified opinion that the area is of special interest was disproportionate (assuming that opinion to be genuinely, and not unreasonably, held) is plainly unmaintainable because: (1) English Nature was duty bound to confirm the notification if it held that opinion, and, accordingly, its decision to do so could not as such be incompatible with Convention rights: only the statutory provisions could be incompatible, and, in this case, the claimants have disavowed any such challenge to the legislation; and (2) in any event, the claimants do not, and cannot, contend that the mere notification or confirmation of English Nature’s opinion would in itself be incompatible with their Convention rights. English Nature’s opinion, of itself, does not interfere with the peaceful enjoyment of their possessions in any respect. It simply represents English Nature’s opinion.
[43] (ii) A challenge to the confirmation of the specification of OLDs, and that the specification of these restrictions imposed disproportionate restrictions upon ownership rights, has now been disavowed. In any event, it would be unsustainable because: (1) it is not in dispute that the operations specified are likely to damage the stone curlew. All that their specification requires is that consent is obtained for them before they are carried out, on pain of committing a criminal offence. If and when the claimants ever propose to carry out such an operation, a fair balance can be struck in determining whether consent should be granted between the acknowledged public interest in protecting the stone curlew and the claimants’ interests in carrying out any such operation. Such a regime is not disproportionate nor is it alleged to be. (Moreover, in this case, |page:58| multiple consents are not required as suggested by the claimants, even if more than one set of controls are applicable to any particular operation); and (2) furthermore, none of the operations specified are likely, in any event, to have any significant impact upon the agricultural use of the claimants’ land (nor do the claimants contend otherwise). Any complaint about control of those operations is, accordingly, manifestly unfounded: see Oerlemans v Netherlands (1989) 62 DR 200 at pp204-206.
[44] (iii) A complaint relating to the effect of being within an SSSI under other statutory regimes, eg the Town and Country Planning General Development Order 1988 (the GDO), and to the effect that restrictions imposed under those regimes in respect of land within SSSIs are more than are strictly required, is likewise misconceived. For it is irrelevant to English Nature’s decision to confirm the notification. At best (from the claimants’ point of view), the claimants might show that the effect of being within an SSSI under other statutory regimes is unlawful as being disproportionate. Their complaint in such a case would be that, for example, the GDO was unlawful as being incompatible with their Convention rights. But it does not mean that English Nature’s decision that this area is of special interest and its confirmation of the notification are themselves incompatible with the claimants’ rights under Article 1.
[45] (iv) Finally, a complaint that the claimants’ property should lie within, not an SSSI, but an SPA is again irrelevant. The only decision for English Nature relates to whether or not to notify, and to confirm the notification of, the area of land as being of special interest. Given that English Nature is duty bound to notify and to maintain the notification if, in its judgment, the statutory criteria have been satisfied, any complaint on the part of the claimants must be that the statutory scheme (not the decision) is incompatible with their Convention rights if it permits or requires such notification when (a) English Nature thinks that the land ought to be within an SPA or (b) when it is. Such a case of statutory incompatibility the claimants disavow.
[46] I should add that if the legal merits of any complaint did need to be examined in any more detail, under Article 1 a fair balance must be struck between the general interest and the interest of any property owner. But, in considering questions of proportionality under Article 1, the European Court of Human Rights has made it plain that states enjoy a wide ”margin of appreciation” in this area relating to the control of the use of land in the public interest for environmental reasons, and that the controls prescribed or interferences involved must be without any reasonable foundation if the court is to regard them as disproportionate: see Fredin v Sweden A/192 (1991) 13 EHRR 784. It is well established that a reasonable relationship of proportionality under Article 1 does not import a test of strict necessity (as Mr David Holgate QC has argued). The fact that there may be other, even better, methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under Article 1: see James v United Kingdom A/98 (1986) 8 EHRR 123; and Tre Traktorer AB v Sweden A/159 (1991) 13 EHRR 309. That ”margin of appreciation” is properly reflected domestically in the respect that is |page:59| due: (a) to the choices that the legislature is entitled to make in this area (for which it is democratically accountable); and (b) to any judgment made by English Nature as a specialist regulator expert in the matters of nature conservation: cf Holder v Law Society [2003] EWCA Civ 39; [2003] 1 WLR 1059. As Forbes J stated in Aggregate, the legislation and decision fall well within the areas of respect to be accorded to the legislature and English Nature. Most particularly, the provisions for notification and confirmation are essential parts of a regime: (a) designed by the legislature to ensure that informed decisions are made before potentially damaging (and indeed irreversible) actions are taken; and (b) to be brought into play in appropriate situations by English Nature; but (c) leaving the landowners free, at all times, to apply to be absolved from the bonds imposed upon them. It was a choice that the legislature was entitled to take in this area, and it was likewise open to English Nature to make the decision.
[47] I accordingly reject the claimants’ challenge under Article 1.
Conclusion
[48] For the reasons that I have set out in this judgment, I accordingly reject this challenge to the decision and dismiss this application. I record with gratitude the immense assistance that I received from counsel throughout this case.
Application dismissed.
