Fisher and Others v English Nature

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Wall,Mr Justice Pumfrey,Lord Justice Auld
Judgment Date26 May 2004
Neutral Citation[2004] EWCA Civ 663
Docket NumberCase No: C1/2003/1625 CO 3788/2001

[2004] EWCA Civ 663

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

Mr Justice Lightman

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Auld

Lord Justice Wall and

Mr Justice Pumfrey

Case No: C1/2003/1625 CO 3788/2001

Between:
The Queen on The Application of Fisher
Appellant
and
English Nature
Respondent

David Holgate QC and Daniel Kolinsky (instructed by Richard Buxton) for the Appellant

John Howell QC and Miss Jane Collier (instructed by Browne Jacobson) for the Respondent

Lord Justice Wall

Introduction: the appeal in outline

1

The Honourable Patrick Fisher and Trustees of the Hon PV Fisher's 1986 Children's Settlement (the Appellants) are among the principal owners of some 13,335.70 hectares of intensely farmed arable land lying across the border between Norfolk and Suffolk and known collectively as the Breckland Farmland.

2

By letter dated 15 November 2000, the Respondent to this appeal, English Nature (formerly the Nature Conservancy Council), acting pursuant to section 28 (1) of the Wildlife and Countryside Act 1981 (the 1981 Act), notified the Appellants (amongst others) that it was of the opinion that the Breckland Farmland was a site of Special Scientific Interest (SSSI). Following a meeting of its Council on 11 July 2001, and acting pursuant to section 28(5) of the 1981 Act, English Nature on 3 August 2001 gave notice to the appellants (amongst others) by letter confirming the notification. The reason for both the notification and the confirmation of the Breckland Farmland as an SSSI was the site's "internationally important population of stone-curlew".

3

The Appellants challenged the lawfulness of the decision to confirm the notification (hereinafter called "the Decision") by means of proceedings for Judicial Review instituted in the Administrative Court on 24 September 2001 and heard by Lightman J over three days on 18–20 June 2003. In a reserved judgment handed down on 4 July 2003, the judge rejected the challenge, dismissed the application and refused permission to appeal. His decision ( [2003] EWHC 1599 (Admin)) is now reported as R (Fisher and others) v English Nature [2004] 1 WLR 503.

4

The Appellants now renew their challenge to the Decision in this court. Permission to do so was granted on the papers by Carnwath LJ on 26 September 2003 on three of the five grounds raised in the Appellant's notice, which I set out in paragraph 107 below.

The structure of this judgment

5

Despite the apparent simplicity of the application of section 28 of the 1981 Act to the facts of this case, and the judge's tautly muscular analysis of the issues, the arguments in this court ranged widely and developed a considerable degree of sophistication. I have therefore come to the conclusion that I need to set out the background to the case and the arguments arising from it in more detail than might normally be expected in an appeal involving the manner in which a specialist statutory body has exercised a clearly identified specialist statutory function. I therefore propose to address the issues raised by the appeal under separate headings. For ease of reference, I provide an index at this point, which charts the path of my attempt to identify and analyse the issues, from which the discerning reader can select whatever information he or she requires.

The Ornithological Background:—

Subject matter

Paragraphs

Introduction: the appeal in outline

1 — 4

The structure of this judgment

5

The ornithological background

6 —

English Nature: its origins, constitution and functions

7 — 10

The scheme for designating Sites of Special Scientific Interest (SSSIs)

11 — 12

The effects of notification and the power to de-notify

13 — 16

Section 28(4) (b) of the 1981 Act: OLDS; "the operations appearing to English Nature to be likely to damage" the fauna in the instant case

17 — 18

Other protective mechanisms for birds: Special Protected Areas and the Birds Directive

19 — 24

The Habitats Directive

25 — 31

The Conservation (Natural Habitats & Regulations 1994) ( SI 1994/2716)

32 — 33

The relationship between SSSIs and SPAs

34 — 37

English Nature's change of policy in the identification and notification of SSSIs in 2000

38 — 46

The Joint National Conservation Committee Guidelines for the selection of SSSIs

47 — 49

The manner in which the decisions to notify and to confirm the Breckland Farmland were taken

50 — 54

The process of confirmation

55 — 57

The meeting of the Council of English Nature on 11 July 2001

58 — 83

The decision of Forbes J in Aggregate

84 — 93

The application for judicial review

94

The judgment of Lightman J

95 — 106

The appellants' notice and the basis upon which permission was granted

107 — 108

The appellants' arguments in this court

109 — 125

Discussion and analysis

126 — 149

Outcome

150

6

As this case is about the stone-curlew, it is right that it should feature at the outset of the judgment. In this regard I can do no better than borrow the summary made by the judge in paragraphs six to eight of his judgment: -

"6. Stone-curlews are a migratory species nesting from March onwards in any year and migrating to southern Spain or North Africa from October. The birds nest from March each year in cultivated land which has plenty of bare ground and fairly short vegetation, as they prefer an open relatively unobstructed vista (so as to be aware of predators) and stony ground so that their eggs are camouflaged. The location of the nests of the stone-curlew may vary from year to year and nesting attempts at different locations in one year are commonplace. Field work has found that stone-curlew may travel up to 3 km from the nest site to forage. Stone-curlews are very sensitive to recreational disturbance and benefit from lack of recreational access on agricultural land. They are not usually affected by mechanised agricultural operations.

7. The stone-curlew is a species identified as being of European significance and as requiring special measures of conservation in the Birds Directive. It is a species that is protected under Part 1 of the 1981 Act by special penalties at all times. It is also a priority species under the UK Biodiversity Action Plan.

8. The stone-curlew is an extremely scarce bird species nationally. Numbers have fallen by 85% since 1960. The British population was estimated to be 215 pairs in 1998 and 234 pairs in 1999. It is one of the rarest breeding bird species in Great Britain."

English Nature: its origins, constitution and functions

7

I take this part of my judgment from the helpful and authoritative explanation contained in the witness statement filed in the proceedings on 13 February 2003 by the Acting Chief Executive of English Nature, Dr Andrew Brown. Dr. Brown explains that whilst there has been a specialist nature conservation body in England since 1949, it was the Nature Conservancy Council Act 1973 which created the Nature Conservancy Council as an independent body to oversee nature conservation. Its functions were concerned with nature reserves, the provision of advice to the Secretary of State on the development and implementation of policies relating to nature conservation, the provision of advice and the dissemination of knowledge about nature conservation and the commissioning and support of research relevant to those matters.

8

The Nature Conservancy Council for England was dissolved on 21 December 1991 by Order of the Secretary of State and by virtue of Section 73 of the Countryside and Rights of Way Act 2000, the Nature Conservancy Council of England is now known instead as English Nature.

9

English Nature is a statutory body corporate, and is not to be regarded as a servant or agent of the Crown. The Council of English Nature is required to comprise not less than ten nor more than fourteen members appointed by the Secretary of State. In practice, Dr Brown says, they are selected for their particular experience, knowledge and expertise in various areas relevant to nature conservation. Dr Brown produces a list of the current members and points out that they have considerable expertise and experience in a range of relevant fields, including botany, biology, marine biology and geology. They also bring to the Council of English Nature their experience of wider countryside and environmental issues including agriculture, town and country planning, and environmental management. The Council meets at least quarterly at different locations. Since 16 May 2001, its meetings have been held in public.

10

English Nature have some nine hundred members of staff. The vast majority of officers involved in nature conservation work have at least a first degree in a relevant scientific discipline in their field. Some work as conservation officers in one of twenty-two area teams with responsibilities for site designation, site management, assessing the condition of SSSIs and seeking to ensure their appropriate management.

The scheme for designating Sites of Special Scientific Interest (SSSIs)

11

An SSSI is defined by section 52 of the 1981 Act as

"An area of land which has been notified under Section 28(1) (b)."

12

As the provisions of Section 28 of the 1981 Act are the heart of this appeal, I propose to set out Section 28(1) to (9) in full. For ease of reference, I have inserted the name "English Nature" for the Nature Conservancy Council wherever it appears:

(1) Where [English Nature] are of the opinion that any area of land is of special interest by reason of any of its flora, fauna or geological or...

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