Feeney v Secretary of State for Transport and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 17 May 2013 |
| Neutral Citation | [2013] EWHC 1238 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 May 2013 |
| Docket Number | Case No: CO/12946/2012 |
[2013] EWHC 1238 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/12946/2012
Mr Hugh Richards (instructed by Richard Buxton & Co Solicitors) for the Claimant
(1) Mr James Strachan (instructed by Treasury Solicitors) for the 1 st Defendant
(2) Mr Timothy StrakerQC (instructed by Eversheds Solicitors) for the 2 nd Defendant
(3) Mr Ned Westaway (instructed by Natural England) for the 3 rd Defendant
Hearing dates: 19 March 2013
Approved Judgment
Introduction
The Secretary of State for Transport made the Chiltern Railway (Bicester to Oxford Improvements) Order 2013 under the Transport and Works Act 1992 and notified its making in the London Gazette on 22 October 2012. The Secretary of State had issued his decision to make the Order in a letter dated 7 October 2012 following an Inquiry in 2010–11, a reopened Inquiry in August 2012, and a report and two addendum reports by an Inspector who made recommendations as to the decision. The challenge to the Order is brought under section 22 of the 1992 Act on the grounds that the Order was not within the powers of the Act.
The Order permits Chiltern Railway Company Limited, the Second Defendant to carry out works on the railway between Oxford and Bicester, and to construct a new length of railway enabling through trains to run from Oxford to London Marylebone by connecting the Oxford to Bicester Line to the Bicester to London line. The section of line with which this claim is concerned would leave the Oxford to Worcester and Malvern, and Oxford to Banbury lines about 3 kms north of Oxford Station, heading northeast to Bicester. It would pass about 1km to the east of parts of the Oxford Meadows Special Area of Conservation, SAC. The existing Oxford to Worcester and Oxford to Banbury lines pass between 1/2 and 1 1/2 km to the east and north of the parts of the Oxford Meadows SAC which are relevant to this case.
The Oxford Meadows SAC was designated because of two qualifying interests. One, creeping marsh wort, is not relevant. The other, lowland hay meadow habitat, is relevant, and is present in three of the four Sites of Special Scientific Interest, SSSI, which are within the SAC. It is the effect of air pollution from oxides of nitrogen, NOx, on that habitat which underlies this case.
Chiltern Railways contended to the Inspector at the re-opened Inquiry that the assessment it had done showed there to be no likely significant effect on the SAC from its project and therefore that no appropriate assessment under the Habitats Directive and the Conservation of Habitats and Species Regulations (CHS Regulations) 2010 SI No 490 was required, nor further assessment or mitigation. Natural England, the Third Defendant and the statutory advisor to the Government on nature conservation, contended to the Inspector that further survey work was required in order to satisfy the requirements of the Directive and Regulations, and that a condition should be imposed requiring such survey work, followed by the implementation of mitigation measures if necessary.
The Inspector agreed with Natural England, taking the view that the effect of such a condition meant that there would be no likely significant effect on the SAC. The Secretary of State accepted that recommendation and accordingly imposed a condition, numbered 31, on the deemed planning consent.
The question whether Condition 31 or a similar condition was necessary had been an issue at the first Inquiry, addressed by Natural England in written representations. The Inspector had recommended, and the Secretary of State had accepted, that such a condition was necessary and that with it, he could be satisfied that no significant environmental effect on the SAC was likely. The Inspector, however, had recommended the refusal of the Order because of a problem over the licence for disturbing bats, without which the scheme would be impeded. The Secretary of State sought further evidence and reopened the Inquiry to deal with that issue. He also invited further evidence on other matters including:
"(iii) Whether condition 31 (Measures for the Protection of the Lowland Hay Meadow Habitat and the Oxford Meadows Special Area of Conservation) in the form now proposed in the Annex to the Department's letter of 24 January 2012, would serve to ensure that the scheme in operation would not be likely to have an adverse effect on the integrity of the Oxford Meadows SAC, having regard to the conservation objectives of the site, by reason of air pollution."
This was the subject matter of evidence leading to the Inspector's conclusion and recommendation after the re-opened Inquiry, and to the decision now challenged.
The Claimant, an objector at the Inquiry, had argued that the proposed Condition 31 would not be effective, and that an appropriate assessment under the Habitats Directive and Conservation of Habitats and Species Regulations was still required. The Claimant pursues that point here. He contended that, properly interpreted, the Directive and Regulations required an appropriate assessment to be carried out unless the Secretary of State was convinced that there was no possibility of an appreciable adverse effect. The existence and terms of Condition 31 showed that the Secretary of State was not and could not lawfully be satisfied that there would be no possible significant effect. The mitigation which might come about from the operation of the condition could not be regarded as part of the project, in particular because of the requirement in Condition 31 for base line surveys of the SAC. This was said to demonstrate that, whether as a matter of rationality or an assumption made without evidence, the Secretary of State had unlawfully avoided the obligation to require an appropriate assessment.
I turn first to the legislation and the jurisprudence since that is the backdrop of the imposition of Condition 31.
The Conservation of Habitats and Species Regulations
It is sufficient for these purposes to refer only to the provisions of the Regulations. Regulation 61 provides:
"61 .—(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications for that site in view of that site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body [Natural England] and have regard to any representations made by that body within such reasonable time as the authority specify.
(4) They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
Regulation 61 includes a screening process in regulation 61(2), and regulation 61(6) is of obvious importance.
The meaning of "likely" in relation to significant effect has been considered in a number of cases by the CJEU. The circumstances requiring an "appropriate assessment" were considered in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij Case C-127–02 [2005] 2CMLR 31; CJEU; " Waddenzee". There had to be a "probability or a risk" that a plan or project would have significant effects on the site. But the precautionary principle meant that such a risk existed "if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned." This "implies that in case of doubt as to the absence of significant effects such an assessment must be carried out…." Hence, the first sentence of Article 6(3) "must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects."
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