R (Aggregate Industries UK Ltd) v English Nature
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FORBES |
| Judgment Date | 24 April 2002 |
| Neutral Citation | [2002] EWHC 908 (Admin) |
| Docket Number | Case No: CO/2633/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 April 2002 |
[2002] EWHC 908 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Forbes
Case No: CO/2633/2001
Mr Robert Fookes, instructed by Mills & Reeve, appeared for the Claimant;
Mr John Howell QC and Jane Collier, instructed by Browne Jacobson, appeared for the First Defendant;
Mr Philip Sales and James Maurici, instructed by The Treasury Solicitor, appeared for the Second Defendant.
Introduction. In these consolidated proceedings, the Claimant (hereafter referred to as “Aggregate Industries”) challenges by way of Judicial Review the decision of the first Defendant, the Council of English Nature (“the Council”), made on 11 th July 2001, whereby it confirmed the notification of certain land situated at Bramshill plantation, Hampshire (“Bramshill”), as a Site of Special Scientific Interest (“SSSI”) pursuant to the provisions of section 28 of the Wildlife and Countryside Act 1981 as amended (“the 1981 Act”). Aggregate Industries is the owner of 277 ha. (approximately 600 acres) of Bramshill (“the site”), having purchased the land in February 2000.
Aggregate Industries’ claim for appropriate relief by way of Judicial Review is based on the following three distinct grounds, each of which is said to render unlawful the Council's decision to confirm the Bramshill SSSI (see paragraph 2 of the written skeleton argument prepared by Mr Fookes on behalf of Aggregate Industries):
(i) that the Council's decision was made in breach of section 6(1) of the Human Rights Act 1998 (“the HRA 1998”) and Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (i.e. “The Right to a fair Trial”);
(ii) that the Council's decision was made in breach of Aggregate Industries’ legitimate expectations; and
(iii) that there was no justifiable basis for the Council's decision.
In the alternative, Aggregate Industries claims a declaration of incompatibility pursuant to section 4 of the HRA 1998 to the effect that section 28 of the 1981 Act is incompatible with its rights under Article 6 of the ECHR. Consequently, the Secretary of State for the Environment, Food and Rural Affairs (“the Secretary of State”), the successor to the Secretary of State for the Environment, Transport and the Regions (“the DETR”), has been joined to these proceedings as second Defendant in accordance with the requirements of section 5(1) of the HRA 1998 (see below).
The Legal Framework.
(1) English Nature. The background, establishment, constitution and statutory functions of English Nature are succinctly and uncontroversially summarised in paragraphs 4.1 to 4.14 of the first witness statement of English Nature's Director of Operations, Dr Andrew Brown, dated 26 th September 2001, from which it is convenient to quote the following passages:
“a. The background to the establishment of English Nature
4.1 Since 1949 there has been a specialist nature conservation body to provide expert advice, and to discharge certain statutory functions of a specialist nature, in relation to nature conservation.
4.2 The Nature Conservancy was a body established by Royal Charter on March 23 rd 1949 with the functions of providing scientific advice on the conservation and control of the natural flora and fauna of Great Britain, establishing and managing nature reserves and the organisation and development of research and scientific services related thereto. …
4.3 The Natural Environment Research Council (NERC) was established pursuant to the Science and Technology Act 1965 and, by virtue of section 3(3) of that Act, took over the activities of the Nature Conservancy, which surrendered its Royal Charter and became a committee of the NERC.
4.4 The Nature Conservancy Council Act 1973 established the Nature Conservancy Council as an independent body to replace the committee of NERC, known as the Nature Conservancy. …
4.5 The Nature Conservancy Council for England was created by the Environmental Protection Act 1990. By virtue of section 73 of the Countryside and Rights of Way Act 2000, it is now known by its more familiar name of English Nature.
b. The constitution of English Nature
4.6 The Council, known as English Nature, is a statutory body corporate. It is not to be regarded as a servant or agent of the Crown.
4.7 The Council is required to have not less than 10 nor more than 14 members. They are appointed by the Secretary of State. In practice they are selected for their particular experience, knowledge and expertise in various areas relevant to nature conservation through a competitive process. … As will be apparent (from the current list, members of the Council) … have considerable expertise and experience in a range of relevant fields, including botany, biology, marine biology, and geology.
4.8 Council members are appointed for a period of 3 years. They have security of tenure during that period and may only be removed by the Secretary of State in the limited circumstances set out in paragraph 6 of Schedule 6 to the 1990 Act.
4.9 The Council of English Nature meets at least quarterly. Some meetings are held in Peterborough, others are held throughout England at locations where Council can meet landowners and representatives of different organisations and make appropriate site visits. Since 16 th May 2001 meetings of Council have been held in public.
4.10 …
4.11 English Nature has some 800 members of staff. … Local team officers … advise on protected species under Part 1 of the Wildlife and Countryside Act 1981, and discharge English Nature's responsibilities as a statutory consultee in various contexts. … Other officers are involved in specialist work on matters such as ornithology, marine and freshwater ecology, palaeontology and genetically modified organisms.
c. English Nature's statutory functions
4.12 In addition to its functions in relation to SSSIs … English Nature has a number of other functions. These include the establishment, maintenance and management of 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 dissemination of knowledge about nature conservation and the commissioning and support of research relevant to those matters. English Nature has also assumed various statutory functions previously vested in the Nature Conservancy Council.
4.13 In discharging its nature conservation functions English Nature has a duty to take appropriate account of actual or possible ecological changes (section 131(2) of the Environmental Protection Act 1990).
4.14 The Secretary of State has a power of direction in relation to some of English Nature's functions (under section 131(4) of the Environmental Protection Act 1990). … this power of direction does not extend to the notification of SSSIs. …”
(2) Sites of Special Scientific Interest. Part II of the 1981 Act came into force on 30 th November 1981 and superseded section 23 of the National Parks and Access to the Countryside Act 1949. Inter alia, the 1981 Act afforded increased protection for SSSIs. These provisions were further reinforced by the Wildlife and Countryside (Amendment) Act 1985.
A new section 28 together with sections 28A to 28N and 28P to 28R were substituted for the original section 28 of the 1981 Act by virtue of section 75 and Schedule 9 of the Countryside and Rights of Way Act 2000 (“the 2000 Act”). Under the transitional provisions contained in Schedule 11 to the 2000 Act, a notification under the old section 28(1) of the 1981 Act has effect (with exceptions which are not material for present purposes) as if it were a notification under the new section 28(1). The requirements of the “old” section 28 with regard to such matters as representations and objections and the withdrawal, confirmation or lapse of notifications have all been reproduced in the “new” section 28. Accordingly, references in this judgment to section 28 of the 1981 Act (as amended) will be references to the new section 28 as substituted by the 2000 Act, unless expressly stated to be otherwise.
The only substantive change in the notification provisions is that a notification under the new section 28(1)(b) must contain a statement of the Council with regard to the management of the land in question. So far as concerns the confirmation of an SSSI under the new section 28(5)(b) following notification under the former section 28(1)(b) (which is the situation in this case), this requirement is converted by the transitional provisions into a requirement to give notice containing such a statement of the Council's views within 5 years from the substitution date.
The 2000 Act was accompanied by a ministerial statement of compatibility pursuant to section 19 of the HRA 1998.
As will be apparent from paragraph 1 above, these proceedings are principally concerned with Section 28 of the 1981 Act (as amended) which, so far as material, provides as follows:
“(1) Where (English Nature is) of the opinion that any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features, it shall be the duty of the Council to notify that fact —
(a) to the local planning authority in whose area the land is situated;
(b) to every owner and occupier of any of that land; and
(c) to the Secretary of State.
(2) …
(3) A notification under subsection (1) shall specify the time (not being less than three months from the date of the giving...
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