Fisher and Others v English Nature

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Lightman,MR JUSTICE LIGHTMAN
Judgment Date04 July 2003
Neutral Citation[2003] EWHC 1599 (Admin)
Docket NumberCase No: CO/3788/2001
Date04 July 2003

[2003] EWHC 1599 (Admin)




Royal Courts of Justice


London, WC2A 2LL



Case No: CO/3788/2001

(1) The Hon Patrick Fisher
(2)trustees Of The Hon Pv Fisher's Children's 1986 Settlement
English Nature

Mr David Holgate QC & Mr Daniel Kolinsky (instructed by Richard Buxton, Environmental and Public Law, 40 Clarendon Street, Cambridge CB3 1JX) for the Claimants

Mr John Howell QC & Ms Jane Collier (instructed by Browne Jacobson, 44 Castle Gate, Nottingham NG1 7BJ) for the Defendant

Mr Justice Lightman



The Claimants on this application challenge the decision ("the Decision") of the Defendant English Nature to confirm the notification of the Breckland Farmland, Norfolk and Suffolk Site of Special Scientific Interest ("the SSSI") (which includes land belonging to the Claimants) under section 28 ("Section 28") of the Wildlife and Countryside Act 1981 ("the 1981 Act"). On the same day that English Nature confirmed notification of the SSSI, English Nature confirmed the notification of the Bramshill Site of Special Scientific Interest which was the subject of a challenge dismissed by Forbes J in R (On the Application of Aggregate Industries Ltd) v. English Nature [2003] Env. LR 3 ("Aggregate").


English Nature confirmed the notification of the SSSI under Section 28 on the 11 th July 2001 and communicated the Decision confirming the notification by letter dated the 3 rd August 2001. In confirming the notification the Decision confirmed the designation of over 13,335.7 hectares of intensively farmed arable land as an area of special scientific interest ("a SSSI"). The reason given for the notification and confirmation was stated as follows: "This site is notified for its internationally important population of stone-curlew." The notification specified five types of operation likely to damage the features of special interest ("OLDs") as requiring the prior consent of English Nature:


"Stand Type of operation


Ref No


10. Killing, injuring, taking or removal of stone curlews, or their eggs and nests. Intentional or reckless disturbance of stone curlews, their eggs or chicks.*


12. Long term afforestation of farmland in excess of 5 hectares.


20. Extraction of minerals including hard rock, sand and gravel, topsoil and subsoil except for on farm use.


21. Construction of roads, or the laying, maintenance or removal of pipelines and cables, above or below ground, except for agricultural or forestry purposes.


23. Erection of permanent buildings or reservoirs, or the undertaking of engineering work, including drilling, except for agricultural or forestry purposes.


*Accidental disturbance through agricultural and game management, for example, is not regarded as intentional or reckless disturbance."


Council Directive 79/409/EEC ("the Birds Directive") on the conservation of wild birds as adapted by the Habitats Directive identifies species listed in Annexe 1 that require special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. The stone curlew is one of those species. The Birds Directive requires the Member States to classify "the most suitable territories in number and size … for the conservation of" that species as special protection areas ("SPAs"). SPAs must under national law be provided with a legal protection regime which is capable in particular of ensuring both the survival and reproduction of the species: Commission v. French Republic (1999) European Court Reports 1–08531. The Secretary of State has the function of classifying SPAs in this country which he performs with the advice of English Nature. English Nature has proposed to the Secretary of State that he include the SSSI (together with other areas) within a SPA. This proposal is supported by the Claimants. The Secretary of State is minded to do so, but has decided to defer his decision until the outcome of this application is known. In the meantime the SSSI is merely included within a proposed SPA ("a pSPA").


The challenge made on this application is to the Decision so far as it confirms the notification. There is no challenge to the notification itself or to the OLDs. The grounds of the challenge are that English Nature: (1) acted irrationally and failed to take into account material, and only material, considerations; (2) exceeded its jurisdiction; and (3) in breach of section 6 of the Human Rights Act 1998 acted in a way that was incompatible with the Claimants' rights under Article 1 of the First Protocol to the European Convention on Human Rights ("Article 1"). The Claimants were granted permission to challenge the Decision on the ground that English Nature had failed to provide a scientifically justified basis for the area of land which it notified, but the Claimants did not pursue this ground at the hearing.


The grievance of the Claimants underlying this application is that a SPA imposes less constraints upon and consequently is less onerous to landowners than a SSSI and that the stone-curlew could be protected without any need for the notification and confirmation by leaving it to the Secretary of State to include the area in question within a SPA or by concluding voluntary agreements with the landowners. A question to be decided is whether under Section 28 it was open to English Nature to decide not to confirm the notification of the SSSI for this reason.




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 locations 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.


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 I of the 1981 Act by special penalties at all times. It is also a priority species under the UK Biodiversity Action Plan.


The stone-curlew is an extremely scarce bird species nationally. Numbers have fallen by 85% in the past 50 years and by more than 50% 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.


The Joint Nature Conservation Committee ("the JNCC") established by English Nature, Scottish Natural Heritage and the Countryside Council for Wales under section 128(4) of the Environment Protection Act 1990 produced Guidelines ("the Guidelines") for the selection of sites as SSSIs which are in large part those published by the Nature Conservancy Council in 1989. The Guidelines indicate that localities which normally contain 1% or more of the total British breeding population of any native species are eligible for selection and that, in view of the mobility of some species, the guideline applies to sites used for other essential activities (such as feeding) as well as nesting sites. Two pairs of stone curlew represent approximately 1% of the Great Britain population of that species.


Around 95% of the United Kingdom population is found in two areas: the Norfolk/Suffolk Brecklands and Wessex. Most are in the Brecklands area. That area suits the stone curlew because of the big open fields, mimicking the birds' preferred habitat of open stony heaths, and the amount of bare land resulting from spring sown crops.


The criteria for the selection of SPAs for birds and those for SSSIs for the birds are similar. The selection guidelines for SPAs suggest that an area which is used regularly by 1% or more of the Great Britain population of a species listed in Annex 1 to Birds Directive is likely to qualify as an SPA. The Guidelines state in relation to the Birds Directive and SPAs:


"Any site that supports nationally important numbers of an Annex I species or a migratory bird species (at any season of the year) should be given consideration as to whether it should be proposed as an SPA. Some sites holding lower numbers of some Annex I species may also need consideration in view of the requirement to maintain distributions. Any such site should qualify as a potential SSSI. These SSSI selection guidelines have been written to embrace such special interest."


In January 2000 English Nature submitted proposals to the Secretary of State for a Breckland SPA. In 1998 the Breckland pSPA supported some 142 pairs of stone-curlew (66% of the Great Britain population) and in 1999 it supported 159 pairs (68%). A large proportion of the Breckland pSPA stone-curlew population nests on arable land. In 2000 arable land supported 61% of the first choice stone-curlew nests and 59% of the total fledged in that area was on arable land.


The SSSI falls within the larger Breckland pSPA. The SSSI itself supported some 102 pairs of stone-curlew in 1999 (44% of the Great Britain population). The SSSI would qualify on its own as a SPA under the...

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