R (Boggis) v Natural England
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blair |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2007] EWHC 2524 (Admin),[2008] EWHC 2954 (Admin) |
| Docket Number | CO/7831/2006,Case No: CO/7831/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2008 |
[2007] EWHC 2524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Nicholas Blake QC
(Sitting as a Deputy Judge of the High Court)
CO/7831/2006
Mr G Jones and Mr Neil (instructed by Parkinson Wright, Evesham, Worcestershire WR11 1GN) appeared on behalf of the Claimant
Mr J Howell QC and Mr J Collier (instructed by browne jacobson, Nottingham NG1 7BJ) appeared on behalf of the Defendant
Mr C Baloch (instructed by the Legal Department for Waverly District Council, Lowestoft, Suffolk NR32 1HS
(As approved)
THE DEPUTY JUDGE: This is a renewed application for judicial review by the claimants of decisions by the body (now known as Natural England), the defendants, to notify and subsequently to confirm the notification designating land as a Site of Scientific Interest, pursuant to its powers under section 28(1) of the Wildlife and Countryside Act 1981, as amended.
The description of the essential contention that I have concluded is arguable, and therefore should proceed to a full hearing, concerns the question of whether the defendants were entitled to designate, under that provision, land on the beach site at the location in question. The land was being used for the construction of what is known as an SSD, which in this context I will take to mean a sacrificial system of defence, but essentially it means piling up materials to prevent the cliff beyond being eroded by wave action.
The claimants have an interest in preventing the cliff being eroded since they are the owners of land, property, and indeed a home, further along the cliff, and the rate of erosion of this part of the coastline is significant. The cliff face has fallen, and will fall at a significant rate, into the sea, unless protective works are maintained.
The defendant body says that the site, not limited to but certainly including the cliff face, is one of Special Scientific Interest within the meaning of the statute because it contains a geological feature, which, in their opinion, is of special interest. The geological feature includes the exposure of the rock strata revealed in the cliff face and the fossil content of those strata.
The defendants say that interfering with the erosion process by the erection of the SSD covers up part of those exposed strata, leads to accumulation of materials and the growth of vegetation, so those strata are no longer visible and available for inspection.
The claimants say that the defendant's powers under section 28(1) have to be read alongside their statutory function under section 131(1) of the Environmental Protection Act 1990. The defendants are the successor body to the Nature Conservancy Council. In a word, section 131 is about conservation functions, and the claimant says you cannot seek to conserve the geological feature by taking a course of action, or promoting a course of action, that will lead to its inevitable destruction or erosion. That is the inevitable consequence of the SSI and the purpose of the SSI, as designated by this defendant. If the preservation of the SSD is identified, as it was in the notification, as an operation likely to damage the feature in question, then the erosion of the feature is what is being promoted to the detriment of the feature, since if the feature is eroded it will no longer exist.
The application is supported by the Waverly District Council, which has appeared as an interested party, and make some supporting submissions limited entirely to this point, on the alternative approaches open to the defendants: suggesting that the study of a feature engages distinct powers under the National Parks and Access to the Countryside Act 1949, as opposed to the conservation of the feature. I have concluded that arguable questions are raised which should not be disposed of in this permission hearing.
I have, therefore, granted permission, limited to argument on this point. I consider that the claimants may need to refine both the bundle and their grounds to clarify precisely their submissions upon this point, also, no doubt, to anticipate and meet the counter-arguments that Mr Howell, for the defendants, has made today, so that the issues are more focused than the materials presently before me are on what, in my judgment, is the only arguable aspect of this claim.
The consequence is that I refuse permission on other matters that found their way into the claim form, namely that the defendants could not do what they have done without prior assessment, as required by European directives, because it is said by the claimants that this is a plan or project under that directive.
I to not consider that that is a seriously arguable proposition because, as the defendants have pointed out, designation does not prevent absolutely the SSD. It simply requires that permission is sought for maintaining the SSD. If permission is refused by the defendants, the matter can go to the Secretary of State. The combination of factors as to the impact of the refusal of specific works, as well as any impact upon human rights and the rights of the home, can therefore be considered.
I consider those submissions to be well-founded. Therefore I reject the grounds based upon the directive and based upon allegations of the relevant considerations being taken into account with regard to human rights.
The question as to the interrelationship of the defendant's actions under section 28, and other statutory provisions under the National Parks and Access to the Countryside Act (all impacts upon systems of enforcement under the coastal defence system) may have some tangential relevance to the central question in this case. However, it is only on the central question in this case, namely whether the defendants could lawfully grant and confirm the designation made, for the reasons which they have done, in respect of a particular area of land that they have done, under the particular statutory regime that they have done, that is the issue upon which I grant permission.
Your Lordship has indicated that the grounds and bundles need to be put into order and it is a matter for my learned friends to do that. What I invite your Lordship to do is to say the normal time for the defendant should run from the time we get the amended grounds bundle.
THE DEPUTY JUDGE: Can you slim this down in 14 days?
I am sure my instructing solicitors can do that. It will be helpful if we did it in liaison with those instructing my learned friends.
THE DEPUTY JUDGE: Anyone who wants something in should have the right to make sure it is in. I would certainly hope that three volumes of reading can be significantly slimmed down. I give directions, therefore, that bundles and grounds that reflect the grounds of permission be lodged within 14 days, and then the time for the defendants runs after such period, as may be agreed.
Could it be 21 days?
THE DEPUTY JUDGE: Certainly, 21 days. There are no other directions I need to make today.
[2008] EWHC 2954 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Blair
Case No: CO/7831/2006
Mr Gregory Jones and Mr James Neill (instructed by Parkinson Wright) for the Claimant
Mr John Howell QC and Ms Jane Collier (instructed by Browne Jacobson LLP) for the Defendant
Mr Christopher Balogh (instructed by Jane Reynolds, Legal Services, Suffolk County Council) for the Interested Party
Hearing dates: 17, 18 and 19 November 2008
This is a claim for judicial review. There are two grounds. Permission in respect of the first was given on 14 September 2007 by Mr Nicholas Blake QC sitting as a Deputy Judge of the High Court, and permission in respect of the second was given by the Court of Appeal on 29 February 2008. The challenge is to the notification and subsequent confirmation of part only of the Pakefield to Easton Bavents Site of Special Scientific Interest (SSSI). The part in question is in the Easton Bavents part of the site, which comprises about one kilometre of the twelve kilometre stretch of coastline within the SSSI. There is no challenge to the validity of the SSSI as it applies to the rest of the site.
The disputed area of land is by the North Sea in Suffolk. At this point the coast consists of low cliffs. The sedimentary nature of the soil gives little protection against the tides. Since 1640, the cliffs have retreated over three and a half kilometres, and the process continues at the rate of a few metres or so a year. The sediment is rich in fossils from the Pleistocene era—which covers the glacial and interglacial periods over the last 1.8 million years or so better known as the Ice Age—and along the coast these fossils are exposed by erosion. The area has attracted scientists since at least the middle part of the nineteenth century. The Defendant used to be called the Nature Conservancy Council, at the relevant time was called English Nature, and is now called Natural England. It has the duty of identifying sites of special...
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