Wildlife and Countryside Act 1981 — Site of special scientific interest — Conservation order — Operations specified as potentially damaging — Whether order can include land not of national importance — Whether “operations” includes agricultural activities — Application dismissed
The applicant is the owner of three meadows and ditches within Westhay Moor, Somerset. In 1985 the applicant was informed by the Nature Conservancy Council that in their opinion Westhay Moor was of special scientific as it “forms part of the nationally important grazing marsh and ditch systems of the Somerset Levels and Moors … [and] supports a nationally outstanding community of terrestrial and aquatic vertebrates”. In June 1987 the Secretary of State for the Environment, in accepting the recommendations of an inspector who had held a local inquiry, made an order under section 29 of the Wildlife and Countryside Act 1981 in respect of Westhay; the order specified certain operations which, by virtue of section 29(3) of the 1981 Act, may not be carried out otherwise than permitted by the Act. The applicant challenged the validity of the order, contending that (1) land which was not of national importance could not be included within the order with other land that was of such importance, and there were other powers available to the Nature Conservancy Council to protect land not of national importance; and (2) the order specified a number of operations which, under the terms of section 29(3) of the Act, could not be prohibited operations as they were agricultural activities that would not result in some physical alteration to the land of some permanence. The Act makes a distinction between “activities” and “operations”, and “operations” had a particular meaning in planning legislation that did not include agricultural activities.
Held The application was dismissed.
1. On the evidence before him, the inspector was entitled to conclude that while only part of the order land was of national importance, the whole of the land constituted a single environment. It followed that the Secretary of State was entitled to draw the boundaries of the order land where he did and to treat the site as a whole and find that it was of national importance.
2. Where an applicant fails to put before an inspector at an appeal a ground of objection, there must be hesitation about granting relief on judicial review. Although the word “operations” is used in the 1981 Act and is a term of art in planning legislation, such legislation is not of any assistance in construing the 1981 Act. Looking at the purpose of the Act, the phrase in section 29(3), “any operation which appears to the Secretary of State to be likely to destroy flora” etc, is wide enough to cover the matters specified in the schedule to the order as prohibited operations.
Parkes v Secretary of State for the Environment
[1979] 1 All ER 211 not followed.
John Howell (instructed by Turner Kenneth Brown, for Whitehouse & Hawks, of Highbridge, Somerset) appeared for the applicant; and Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State.
