R Mark Keir v Natural England

JurisdictionEngland & Wales
JudgeMr Justice Holgate
Judgment Date27 April 2021
Neutral Citation[2021] EWHC 1059 (Admin)
Date27 April 2021
Docket NumberCase No: CO/1327/2021
CourtQueen's Bench Division (Administrative Court)

[2021] EWHC 1059 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HON. Mr Justice Holgate

Case No: CO/1327/2021

Between:
The Queen on the application of Mark Keir
Claimant
and
Natural England
Defendant

and

(1) Morgan Sindall Construction & Infrastructure Limited, BAM Nuttall Limited, and Ferrovial Agroman (UK) Limited
(2) High Speed Two (HS2) Ltd
Interested Parties

Charles Streeten (instructed by Richard Buxton Solicitors) for the Claimant

Leon Glenister (instructed by Browne Jacobson LLP) for the Defendant

James Strachan QC and Victoria Hutton (instructed by Government Legal) for the 2nd Interested Party

The 1 st Interested Party was not represented and did not appear

Hearing date: 23 rd April 2021

Approved Judgment

Mr Justice Holgate

Introduction

1

The High Speed Rail (London — West-Midlands) Act 2017 (“the 2017 Act”) authorises the construction of the HS2 high speed railway. High Speed Two (HS2) Limited, the second interested party (“IP2”) is the “nominated undertaker” under the 2017 Act. The first interested party, previously described as Fusion and Murphy Joint Venture, is the contractor for the enabling works for the central section of the phase 1 route. 1

2

This case concerns a small section of the route which crosses an area of ancient woodland forming part of Jones Hill Wood, near Wendover, Buckinghamshire. The project requires 0.7ha of land used for this purpose.

3

The Wood contains a number of different species of bat which are “European protected species” under regulation 42 of and Schedule 2 to the Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012) (“the 2017 Regulations”). Under regulation 43 it is an offence inter alia to deliberately capture, injure or kill any wild animal of such a species, or to deliberately disturb, or damage or destroy a breeding site or resting place of such an animal.

4

By regulation 55 a licence may be granted for any of the purposes set out in subparagraph (2), including “imperative reasons of overriding public-interest, including those of a social or economic nature.” Anything done in accordance with such a licence is not an offence under inter alia regulation 43 (see regulation 55(3)). Such a licence is often referred to as a derogation licence.

5

The construction of the railway through the Wood requires a number of trees to be felled. Some 19 of those trees have “potential roosting features” with varying degrees of suitability for bats.

6

The 2017 Act does not disapply the licensing regime under the 2017 Regulations or grant any licence for the purposes of regulation 55 in relation to the works authorised to be constructed. Accordingly, IP1 had to make an application for a regulation 55 licence in relation to certain works in the Wood, including the felling of the 19 trees. It did so on 18 December 2020.

7

The relevant licensing body for the purposes of regulation 55 is the defendant, Natural England (“NE”) (pursuant to s. 78 of the Natural Environment and Rural Communities Act 2006).

8

On 3 February 2021 NE notified IP1 that it would not grant a licence at that stage because it was not satisfied that the information provided met the third of three statutory tests, namely that the actions to be authorised would not be detrimental to maintaining certain bat species at a “favourable conservation status” (“FCS”). They indicated the nature of the further information that should be considered.

9

On 5 March 2021 IP1 submitted to NE a revised application with additional information. On 25 March 2021 NE issued a further decision to the effect that it was satisfied that the FCS test had been met.

10

On 30 March 2021 NE granted the licence to IP1 which is the subject of this proposed claim for judicial review. It is a detailed document which incorporates a number of other documents approved by NE. The licence authorises the works and activities described in the Annex WML-OR58(B). They include inspection of the 19 trees before any works are carried out and the loss of any bat roosts actually present in those trees. The licensee must comply with inter alia the Jones Hill Wood Method Statement and the work schedule (see condition 7). Condition B2 in Annex B also requires adherence to the approved work schedule. The schedule requires felling to be carried out in April. Pre-felling surveys must be carried out under condition 12.

11

Condition B5 requires that before any destructive works may be undertaken inspections must be carried out to search for any bats that may be present. All searches and felling must be carried out, or directly supervised by, a named ecologist or accredited agent. Any bat discovered must be relocated to a suitable roost or to a suitable foraging/commuting habitat.

12

Condition B13 prohibits licensed activities which affect inter alia maternity and habitation roosts while any such roosts are in use for those purposes. A “maternity roost” is defined in condition B27 as one where female bats give birth and rear their pups to independence. Condition B2 prohibits felling until “after temperatures have not dropped below 8°C for 4 days.” The object of that condition is to prohibit felling until the point is reached when bats emerge from hibernation.

13

Condition B19 requires the provision of a number of defined compensation features under the direct supervision of the named ecologist or accredited agent. They include 24 replacement roost features (specific designs of “bat boxes”) and the planting of 3.2ha of woodland habitat and fruit trees on an adjacent site. Condition B24 requires maintenance and monitoring of the mitigation and compensation measures until 2031 together with annual reports to NE (see condition B25).

The proceedings in the High Court

14

The claimant, Mark Keir, is a member of a group of ecologists and citizens opposed to the HS2 project, known as “Earth Protectors”. Some of the group were camping in that part of the wood which is planned to be felled until IP2 regained possession in October 2020.

15

On 16 February 2021 the claimant's solicitors wrote to NE to ask that copies of the licence application and documentation be provided to them before the grant of any licence so that the group's ecologists could review the material and raise any concerns they might have before any final decision was made. NE replied on 19 February 2021 stating that they do not follow that practice in other cases and would not do so here. I note that Parliament has not imposed any requirement for public consultation in relation to applications for licences under regulation 55 and that the claimant raises no complaint about the procedure followed.

16

Once the licence was granted on 30 March 2021, the claimant's solicitors requested the relevant papers from NE. NE provided them by late morning on the following day. The claimant's legal team and experts studied the papers over the Easter weekend.

17

On Tuesday 6 April the claimant's solicitors wrote to NE to set out their concerns at that stage. They noted that the assessment accepted by NE had proceeded on the basis of a worse case assumption that the area to be felled included one maternity roost for the barbastelle bat. The claimant's group had serious concerns about the efficacy of the mitigation to be provided and its adequacy to achieve compliance with the FCS test. The letter referred to the loss of that assumed roost and indicated that a challenge might be made to the lawfulness of the licensing decision on that basis. However, the authors accepted that “NE may have been provided with confidence in its decision by proven success of these techniques elsewhere.” They asked to see evidence that bat boxes can be used to provide compensation for the loss of a barbastelle breeding site. The letter did not indicate any of the other grounds of challenge now pursued. No pre-action protocol letter was sent.

18

NE responded on Friday 9 April expressing confidence in the adequacy of the mitigation and compensation measures which would be provided to maintain the conservation status of any species of bat affected by the works at the Wood. The response also pointed out that barbastelle bats may use several maternity roosts, each for a few days at a time, and that the loss of one roost feature within a network of woodlands had been considered in that context. However, the response did not refer to any evidence of the kind requested on behalf of Mr Keir.

19

Over the following weekend, the claimant obtained advice and grounds of challenge were drafted. The claim was served on NE on 12 April. The grounds range much more widely than the points raised in the letter of 6 April. The claim was accompanied by expert reports from two ecologists, Mr. Dominic Woodfield and Mr. Rob Mileto.

20

The claim was also accompanied by an urgent application in form N463. The interim relief sought included an order for a rolled up hearing, an injunction prohibiting the carrying out of any works or activities under the licence, and an order suspending the licence. The claimant's solicitors accepted that it would be appropriate for a hearing to be held to deal with these matters. NE and IP2 opposed the application. IP2 also requested a hearing. NE submitted that the issue of whether permission be granted should be dealt with initially on paper.

21

It is to be noted that paragraph 3(b) of the Statement of Facts and Grounds accepted, rightly in my judgment, that a key issue in determining whether the interim injunction should be granted is whether the licensed works would result in environmental damage undermining the “favourable conservation status of a rare species protected by the Habitats Regulations”, namely the barbastelle bat. That is relevant to any attempt to justify the injunction on the grounds of the preservation of the status...

To continue reading

Request your trial
2 cases
  • R Tarian Hafren Severn Shield CYF v Marine Management Organisation
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 March 2022
    ...LLR 808R (CPRE Kent) v Dover District Council [2017] UKSC 79; [2018] 1 WLR 108; [2018] 2 All ER 121, SC(E)R (Keir) v Natural England [2021] EWHC 1059 (Admin); [2022] Env LR 3R (Langley) v Crown Court at Preston [2008] EWHC 2623 (Admin); [2009] 1 WLR 1612; [2009] 3 All ER 1026, DCR (Mott) v ......
  • The Queen -on the application of- Majestic Group Ltd v Secretary of State for Environment, Food and Rural Affairs
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 29 July 2022
    ...they agreed that the approach was correctly summarised by Holgate J in R (on the application of Keir) v. National England [2021] EWHC 1059 (Admin.) at para.45 as to the approach to be taken by the court to the grant of an injunction by reference to the R (on the application of Medical Just......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT