Eaton v Natural England (Defendant/First Respondent) Rwe Npower Renewables (Interested Party/2ND Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 01 May 2013 |
| Neutral Citation | [2013] EWCA Civ 628 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 2013 |
| Docket Number | Case no: C1/2012/2323 |
[2013] EWCA Civ 628
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE WAKSMAN QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Sullivan
Case no: C1/2012/2323
Mr Richard Drabble QC (instructed by Richard Buxton Environmental and Public Law) appeared on behalf of the Applicant.
Mr Craig Howell-Williams QC (instructed by Eversheds LLP) appeared on behalf of the First Respondent.
Mr Richard Honey and Ms Sarah Sackman (instructed by Eversheds LLP) appeared on behalf of the Second Respondent.
This is a renewed application for permission to appeal against the order dated 23 August 2012 of HHJ Waksman QC sitting as a Deputy High Court Judge, refusing the claimant permission to claim judicial review and refusing the claimant's applications for interim relief and for a Protective Costs Order (PCO) following a hearing on 14 August 2012. The judge's judgment is to be found reported at [2012] EWHC 2401 (Admin).
The judicial review claim was the latest stage of a campaign by a residents group, of which the applicant is a member, called "BATTLE" to prevent the construction of a windfarm at Hockley Farm, Bradwell-on-Sea in Essex.
The claim form sought against Natural England declarations that the operation of the windfarm would be unlawful because it would give rise to breaches of the Wild Birds Directive and the Habitats Directive, and it also sought against the interested party, RWE, an injunction preventing the continued erection and operation of the turbines.
The underlying basis for the claim was the proposition that because of the risk of collision with the turbines when they were operational, a criminal offence (or offences) would be committed, namely the deliberate killing of protected birds and protected species, in this case bats.
The risks of collision had been considered in some detail at the planning inquiry, and they had also been considered by Natural England. Natural England had concluded that, given the nature and extent of the risks of collision, and the measures to mitigate risk, for example the orientation of the turbines, there was no likelihood that a criminal offence would be committed. Having considered the evidence on this issue, the judge concluded in paragraph 51 of his judgment that even if it had been open to him in judicial review proceedings to grant an injunction to prevent the future commission of a criminal offence, he would not have done so because the evidence did not demonstrate the likelihood of a criminal offence being committed. The judge also concluded that the judicial review proceedings were not in reality seeking any substantive public law remedy against Natural England, but were, in reality, private law proceedings for what was in effect a quia timet injunction against the interested party which the applicant was not entitled to seek unless she could show that as a result of the possible commission of a criminal offence, she herself would suffer some tortious loss, which she did not claim.
The judge refused interim relief. Against that background, the judge considered the issue of a PCO in paragraph 76 to 81 of his judgment, and concluded that, for the reasons set out in paragraphs 76 to 80, he would not have considered it fair or just to make a PCO.
The refusal of interim relief by the judge is not challenged in this application for permission to apply for judicial review. I was told that some at least of the turbines have now been erected. Although the applicant seeks permission to appeal against the judge's refusal to grant her permission to apply for judicial review, in my judgment the challenge to that aspect of the judge's order has no prospect of success whatsoever. The underlying proposition, that there is a likelihood of the commission of a criminal offence or offences, namely the deliberate killing of protected birds or species, is hopeless. On any commonsense approach to the Commission's guidance, as endorsed in the case of Morge [2011] Env LR 8, there is simply no realistic prospect and never was a realistic prospect of securing a conviction for a criminal offence in these circumstances against the background evidence that the judge considered, and hence there was no basis for seeking an injunction.
The judge was entitled to look at reality rather than form, and if that was done, then in reality no significant relief was being sought against Natural England. The claim was, in essence, a claim for injunctive relief against RWE, the object of the claim being to halt the turbine project, hence the claim for interim relief rather than a claim simply for declaratory relief against Natural England. I have no doubt whatsoever that the judge was right to dismiss the claim for judicial review for the reasons he gave.
Without abandoning the application for permission to...
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