Conservation — Natural habitats — Extant planning permission for quarrying — Appellant refusing application for licence to relocate newt population — Decision quashed by High Court on application of respondents — Whether preservation of species imperative reason of overriding public interest — Regulation 44(2)(e) of Conservation (Natural Habitats, etc) Regulations 1994 — Appeal allowed
The respondents were the freehold owners of a disused quarry that retained the benefit of planning permission for mineral extraction. They obtained a lawful use certificate to resume quarrying on condition that, prior to any extraction, an application would be made to the Welsh Assembly Government for a licence to relocate a population of great crested newts. Under the Conservation (Natural Habitats, etc) Regulations 1994, implementing Directive 92/43/EEC, such a licence was 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 member of a protected species. Regulation 44(2)(e) provided that regulation 39 did not apply to anything undertaken for, inter alia, “the preservation of public health or public safety or other imperative reasons of overriding public interest”, and in accordance with the terms of a licence.
The respondents applied for a licence pursuant to regulation 44(2)(e). They argued such a licence would serve the public interest by preserving a protected species that would otherwise suffer destruction from an activity made lawful by an existing planning permission. The appellant refused the application. It found that the overriding public interest could not include the preservation of the species that the appellants sought to relocate, and that any damage to that species upon resumption of quarrying was not a consideration that was relevant or central to its decision.
The respondents applied for judicial review of that decision, and a declaration that the habitat was not “semi-rural” for the purposes of the directive and the 1994 Regulations. They argued that the legislation did not provide protection for habitats artificially created by commercial use. The High Court granted the application: [2004] EWHC 30 (Admin); [2004] 07 EG 130 (CS); [2004] PLSCS 25. The appellant appealed to the Court of Appeal, where the principal issue was whether the preservation of the species could itself provide “an imperative reason of overriding public interest” within regulation 44(2)(e).
Held: The appeal was allowed.
The appellant was entitled to take a view, independent of the planning authorities, as to whether the purpose relied upon provided an imperative reason of overriding public interest. On that basis, the challenge to its decision had to be rejected.
Regulation 44 was a derogating provision. All the purposes expressly set out in regulation 44(2)(e), (f) and (g), if carried out, would or might affect a species or its breeding site. It was unlikely that the general words “other imperative reasons of overriding public interest” were intended to introduce, as a purpose forming the basis for a licence, the preservation of a species. “Imperative reasons” of “overriding public interest” contemplated a project or a plan, vital in the public interest, that would necessarily have an effect upon protected wild animals or wild plants.
In the present case, if the assembly were to have jurisdiction to be persuaded to grant a licence, it could only have been upon the basis of the need for a licence for a purpose other than simply conserving newts. The only purpose that the respondents could rely upon was the existence of the planning permission and their interest in commencing their quarrying operations.
Milwyn Jarman QC and Andrew Keyser (instructed by the Treasury Solicitor) appeared for the appellant; Martin Kingston QC and David Park (instructed by Bremners, of Liverpool) appeared for the respondents.
Eileen O’Grady, barrister
