Extant planning permission for quarrying — Defendant refusing application for licence to relocate newt population — Whether planning permission providing defence to prosecution for disturbing newts — Relevant considerations in determining licence application — Regulations 39, 40(3)(c) and 44(2)(e) of Conservation (Natural Habitats etc) Regulations 1994 — Claim allowed
The claimants were the freehold owners of a disused quarry that still retained the benefit of planning permission for quarrying. They wished to resume quarrying activities, and obtained a lawful use certificate in respect of that use of the site. However, a note attached to the certificate stated that before any mineral extraction could be carried out on the land, an application would have to be made to the National Assembly for a licence to translocate a substantial breeding population of great crested newts, which were a protected species. Under the Conservation (Natural Habitats etc) Regulations 1994, implementing Council Directive 92/43/EEC, such a licence would be required in relation to “natural” and “semi-natural” habitats in order to avoid criminal liability under regulation 39, which made it an offence to damage, disturb or destroy a wild animal of a protected species. Regulation 44(2)(e) provided that regulation 39 did not apply to anything done for one of several listed purposes, including “preserving public health or public safety or other imperative reasons of overriding public interest”, and in accordance with the terms of a licence. Under regulation 40(3)(c), it was also a defence to show that the act was “the incidental result of a lawful operation” and could not reasonably be avoided.
The claimants applied for a licence pursuant to regulation 44(2)(e) of the 1994 regulations. They argued that the grant of a licence would serve the public interest by saving from damage a protected species that would otherwise suffer destruction and damage from an activity made lawful by an existing planning permission and therefore covered by the regulation 40(3)(c) defence. The defendant refused the application. In doing so, it found that the overriding public interest referred to could not include the preservation of the species that the claimants sought to relocate, and that the damage to the protected species upon resumption of the quarrying development was not a consideration relevant or central to the decision of whether to grant a licence.
The claimants brought an application for judicial review of that decision, and sought a declaration that the habitat in question was not “semi-rural” for the purposes of the directive and the 1994 Regulations. They argued that it was not the purpose of that legislation to provide protection to habitats that had been artificially created by commercial use. An issue also arose as to whether the existence of a planning permission created an absolute defence under regulation 40(3)(c).
Held: The claim was allowed.
1. Conviction on a regulation 39(1)(d) offence would be avoided if a defendant proved that: (i) the operation was lawful apart from that regulation; (ii) the lawful operation could not have been carried out in a manner that could reasonably have avoided the damage or destruction; and (iii) the damage or destruction was an incidental result of the lawful operation. The holder of a planning permission did not have an absolute defence to liability under regulation 39(1)(d). They would have to prove both that the prohibited consequence was incidental to the lawful operation and that the consequence could not reasonably have been avoided by pursuing the same lawful operation by other means: R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd (No 2) [2000] Env LR 221 and R v Cornwall County Council, ex parte Hardy [2001] JPL 786 applied. The claimants would have a good arguable defence to a prosecution under regulation 39.
2. Regulation 44 was to be approached with an understanding that both the directive and the 1994 Regulations recognised the possibility that a lawful operation could cause serious incidental harm to a protected species. That was the point at which the defendant should have considered, but did not consider, the effect of the planning permission and its interaction with the regulation 49(3)(c) defence.
“Other imperative reasons of overriding public interest”, in regulation 44(2)(e), could include a public interest in the preservation of the protected species itself. The phrase was not intended to be ejusdem generis with preserving public health or public safety. The public interest could be formed by a variety of exigencies, and the categories of public interest described by para 2(e) were not intended to be exhaustive. What was required was an identifiable public interest that outweighed the regulatory purpose of preventing any destruction or disturbance of, or damage to, a protected species. It made good sense that the concept of public interest should be engaged to prevent the risk of damage to a protected species by the operation of a planning permission granted before the 1994 Regulations came into effect.
Accordingly, the weighing exercise was bound to include an assessment of whether the applicant could proceed without criminal liability under regulation 39. If it could, then the more weighty became the public interest in managing the disturbance to the advantage of the environment: Greenpeace and Commission of the European Communities v United Kingdom C-434/01 6 November 2003 considered. The defendant had erred in its approach to the claimants’ application and had failed to take into account a material consideration. Its decision would be quashed and remitted for reconsideration.
3. The term “semi-natural” meant, for present purposes, created partly by the activity and effect of nature and partly by that of mankind. The habitat on the claimant’s site was a long-standing quarry in which natural water had been allowed to accumulate, thus creating, over a period of years, an environment suitable for the sustenance of a newt population. Such an environment was without question semi-natural within the meaning of the directive and the 1994 Regulations. It was immaterial that the quarrying activity that enabled the habitat to be formed was the product of a commercial activity. The motive or purpose of the intervention of man that contributed to the creation of the habitat was irrelevant to the question of whether that habitat was, in the result, semi-natural.
Martin Kingston QC and David Park (instructed by Bremners) appeared for the claimants; Milwyn Jarman QC and Andrew Keyser (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
