R (Brown) v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 26 March 2003 |
| Neutral Citation | [2003] EWHC 819 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2776/2002 |
| Date | 26 March 2003 |
[2003] EWHC 819 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Collins
CO/2776/2002
MR J PERERA (instructed by Earthrights, Essex CM22 6PJ) appeared on behalf of the Claimant
MR T MOULD AND MR T BULEY (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
(Approved by the Court)
Wednesday, 26 March 2003
The claimant challenges decisions by the defendant to confirm compulsory purchase orders and orders made under the Highways Act 1980 in relation to a scheme for what is known as the Western Bypass of Barnstaple in North Devon. The real point at issue concerns the construction of a bridge over the estuary of the Taw, which it is said will breach two EC Directives, namely, 79/409 on the Conservation of Wild Birds and 92/43 on the Conservation of Natural Habitats.
On 29 November 1999 Devon County Council, the promoters of the bypass, granted itself the necessary planning permission to enable the bypass to be constructed. That was subject to a number of conditions, some of which were concerned with protection of the environment and of the habitat. Where the new bridge crosses it, the estuary of the River Taw is designated a site of special scientific interest ("SSSI") pursuant to Part 2 of the Wildlife and Countryside Act 1981.
The relevant conditions in the planning permission were Nos.5 and 8. 5, so far as material, reads under the heading "Ecological monitoring":
"Within three months of the date of this permission details of an ecological monitoring and mitigation scheme shall be submitted to and approved in writing by the Country Planning Authority. Such approved scheme shall be implemented upon approval in writing and shall continue for a period of five years after construction of the development hereby permitted. The scheme shall address the following:"
There are then set out six matters, including:
"Effect on otters and badgers.
Impact of construction noise on the adjoining SSSI. Ongoing disturbance of over-wintering wetland birds. Counts of birds using the estuary in the vicinity of the development.
Changes to the distribution and extent of inter-tidal habitat in the vicinity of the development and changes to the plant communities of the saltmarsh."
The reason for the requirements in this condition was stated to be:
"To ensure adequate recovery of habitats and species during and after development and prompt action to remediate any failure to recover."
Condition 8 is headed "Protection of the Salt Marsh". It reads:
"No development shall take place until details of a scheme to protect saltmarsh habitat during and after construction has been submitted to and agreed in writing by the Country Planning Authority. The scheme shall include monitoring of the condition of the saltmarsh during and after construction."
The reason given for that is:
"To minimise damage to the saltmarsh, which is a nationally important habitat."
The defendant appointed an inspector to hold a public inquiry and to report to him. The inquiry was held between 19 and 29 June 2001. There were no statutory objectors to any of the orders, which has led Mr Perera, on behalf of the claimant, to accept that this claim could properly concentrate on what has been described as the "bridge order". If the construction of the bridge is not permitted, the whole bypass scheme will come to nought.
The Inspector's report was published on 5 October 2001. On 17 April 2002 the defendant accepted all the Inspector's recommendations and approved the orders, subject to some minor, and in the context of this claim, immaterial modifications. This claim was lodged on 12 June 2002. There were a number of objectors at the inquiry but the principal objector was the North Devon Friends of the Earth. The claimant made his own objections and gave evidence. He lives near South Molton on the Taw River and is an active member of the Green Party. Indeed, he stood as candidate for that party in the North Devon constituency. Apart from his own particular objections he also supported the case being presented by Friends of the Earth.
Two grounds have been argued before me by Mr Perera. First, he submits that in accordance with the Wild Birds Directive this estuary, and in particular the area included within the SSSI, should have been designated a special protection area ("SPA"). The failure to do so means that any development such as the bridge is unlawful, because the European Court of Justice has made it clear that the regime imposed by the Directive in order to protect wild birds applies in all its rigour where national governments have failed to comply with their obligations.
Second, Mr Perera submits that the regulations enacted by the United Kingdom to implement the Habitat Directive, that is to say the Conservation (Natural Habitats etc) Regulations 1994 provide that otters, which are a protected species, must not be disturbed; to do so is a criminal offence unless a licence is obtained from the appropriate authority, which is the relevant minister in DEFRA. The regulation specifies the circumstances in which such a licence can be granted, and neither the Inspector nor the defendant has had proper, or indeed any, regard to those circumstances. That failure means that the decision is therefore unlawful.
The Wild Birds Directive required Member States to bring into force measures to implement it within two years of its notification, thus by April 1981. One of its purposes was to preserve, maintain or restore a sufficient diversity of area of habitat to conserve all species of wild birds, with particular focus on those under pressure or declining in numbers and those which are regarded as endangered species.
Article 4 of the Wild Birds Directive (which is for our purposes the most material of the Articles) provides as follows:
"1 The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.
In this connection, account shall be taken of:
a. species in danger of extinction;
b. species vulnerable to specific changes in their habitat;
c. species considered rare because of small populations or restricted local distribution;
d. other species requiring particular attention for reasons of the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.
Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.
2 Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
3 Member states shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.
4 In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats."
The estuary is particularly important because it attracts a considerable number of wintering birds. Species which are in Annex I include golden plover. Before the Inspector Friends of the Earth contended that the estuary should have been designated an SPA. It was submitted that the area fulfilled the necessary criteria. Following the conclusion of the inquiry but before the Inspector reported, their solicitors, under cover of a letter of 11 September 2001, sent to the Inspector a copy of a report from the Nature Conservancy Council ("NCC") dated 1990. This report is entitled "Protecting internationally important bird sites", and it is said to be a review of the EEC Special Protection Area Network in Great Britain. The purposes of the review are set out and include (in paragraph 2.3) that the UK Government had requested the NCC to examine the extent to which the presently proposed suite of SPAs could fulfil its commitment under the Directive. So far as selection of sites is concerned this is said (in paragraph 4.2):
"At the request of Government, the NCC has identified sites of international importance for nature conservation for designation under both the convention Ramsar Convention and EEC Birds Directive. Identification and evaluation of these areas is a continuing process. To date a total of 218 candidate SPAs and 154 candidate Ramsar sites have been identified. It is the NCC's view that the presently proposed SPA network is the minimum of sites needed to...
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