Special area of conservation — Whether scientific justification for inclusion of claimants’ land as SAC — Whether relevant consideration that protected species likely to be affected by existing consent — Claim dismissed
The claimants owned an area of land that had been designated as a special area of conservation (SAC) pursuant to Council Directive 92/43/EEC, as implemented by the Conservation (Natural Habitats, etc) Regulations 1994. Although the area had initially been considered of no more than local importance, it was later added to the list of SAC candidates that were submitted to the European Commission, on the basis that the existing list provided insufficient representation of certain habitats and species. The claimants’ land had been chosen in part because of the presence of calaminarian grassland and a population of great crested newts.
The claimants sought to quash the decision to include their land in the candidate list. The claim was heard as a “rolled-up” hearing, comprising both the application for permission to proceed and the substantive hearing of the issues. The claimants contended, inter alia, that: (i) the haste with which the revised list of candidate SACs was produced had been at the expense of a proper scientific justification; and (ii) they held a lawful use certificate for quarrying the land inhabited by the newts, and the land should therefore have been excluded from the proposed SAC. An earlier court decision regarding the quarry had upheld a refusal by the defendant, on an application under regulation 44(2)(e) of the regulations, to grant a licence to relocate the newt population: see [2004] EWCA (Civ) 1565; [2004] 49 EG 134 (CS). In response, the claimants contended that: (i) certain comments in that judgment suggested that an application for a relocation licence made under a different provision – regulation 44(2)(c) – should succeed; and (ii) even if the quarrying destroyed the newts, the claimants would not be guilty of an offence under regulation 39 because they would be able to rely upon the regulation 40(3)(c) defence, namely that the act was the incidental result of a lawful operation and could not reasonably have been avoided. They therefore argued that; (i) the recommencement of quarrying was inevitable; (ii) the newt colony was bound to be lost or relocated; and (iii) these were relevant considerations to which the defendant should have had regard when assessing the site as a candidate SAC.
The defendant submitted that the decision under challenge had been superseded by the European Commission’s adoption of a list of SACs that included the claimants’ land, and that the present claim could therefore serve no useful purpose.
Held: Permission was granted but the claim was dismissed.
1. If the claimants were to challenge the Commission’s decision to adopt the list of SACs by means of a direct action before the Court of First Instance in Luxembourg, it would be for that court to decide what, if any, assistance was to be derived from any findings in the present proceedings. The fact that the claimants would seek to rely upon such findings was sufficient to give a legitimate purpose to the continuation of the judicial review claim, and, accordingly, permission should be given for the claim to proceed.
2. The defendant’s decision to include the claimants’ land within the list of candidate SACs had a proper scientific basis and was not “quota-driven”, as the claimants contended. The defendant had been entitled to rely upon the presence of both the newts and the grassland as justifying the land’s inclusion.
3. As to the quarry, the relevant assessment criteria for SACs were defined exclusively in relation to the conservation objective. It was not possible to exclude an otherwise appropriate site on the basis that the relevant habitats or species were liable to be affected by the implementation of existing consents. One of the purposes of the directive was to confer protection upon sites that met the Annex III criteria; such protection included a review of existing consents to determine whether, and upon what conditions, they could be implemented. The scheme of the directive would be turned on its head if the existence of a consent could be relied upon as a reason for not protecting a site in the first place. It followed that the possibility, or probability, that, save for SAC status, the existing planning permission would be implemented and the great crested newt colony would be lost or relocated was not a legally relevant consideration in determining whether to include the quarry within the area of the candidate SAC. The defendant’s decision could not be successfully impugned by reference to a failure to take such matters into account.
Martin Kingston QC and David Park (instructed by Bremners, of Liverpool) appeared for the claimants; Milwyn Jarman QC and Andrew Keyser (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
