R (Newsum and Others) v Welsh Assembly Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Tuckey,Sir Charles Mantell |
| Judgment Date | 22 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1565 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 2004 |
| Docket Number | Case No: C3/2004/0342 |
[2004] EWCA Civ 1565
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Mr Justice Pitchford
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Tuckey and
Sir Charles Mantell
Case No: C3/2004/0342
CO/1872/03
Mr Milwyn Jarman QC and Andrew Keyser (instructed by the Treasury Solicitor) for the Appellant
Mr Martin Kingston QC and David Park (instructed by Bremners) for the Respondent
This is an appeal from the judgment of Pitchford J dated 4 th February 2004 by which he quashed the decision of the Welsh Assembly Government (the Assembly) refusing to grant to the Trustees of the Estate of the Duke of Westminster a licence to "translocate" a population of great crested newts (gcns) from a quarry to a specially prepared site. The application for a licence was made under regulation 44(2) (e) of the Conservation (Natural Habitats etc) Regulations 1994 (the 1994 regulations) .
The point which arises on the appeal, putting it very shortly for the moment, is this. Regulation 39 provides for it being an offence deliberately to kill gcns and (and this need not be deliberately) to damage or destroy breeding sites of gcns. But by regulation 40(3) (c) a person is not guilty of an offence by reason of "any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided". Liability under regulation 39 is also excluded for anything done for certain purposes and in accordance with a licence obtained under regulation 44. Regulation 44(2) (e) identifies one purpose as being "preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment." The Trustees' case is that they have planning permission which allows them to do the very things which will "incidentally" and "unavoidably" kill gcns or damage or destroy the breeding site of gcns. They say that arguably by virtue of regulation 40(3) (c) they will not be committing an offence if they do those things. They say in addition to the importance of allowing this quarry to be worked, it is a reason of overriding public interest that the gcns should be preserved, and a licence should be granted to relocate them. The Assembly say that under regulation 44(2) (e) the preservation of the gcns is not a matter of overriding interest, and the question of whether the Trustees would or would not be guilty of an offence under regulation 40 (3) (c) if they carried out the works authorised by the planning permission is an immaterial consideration. They say that there is no reason of overriding public interest in allowing the quarry to be worked at present, and thus no licence should be granted to relocate the gcns.
Background
Since there is no challenge to substantial parts of Pitchford J's judgment it is convenient to append the same to this judgment. Both Mr Milwyn Jarman QC for the appellant Assembly and Mr Martin Kingston QC for the respondent Trustees adopted as accurate parts of the judge's judgment which set out the following aspects fully and clearly—the background to the claim, paragraphs 1 to 11; the relevant parts of the European Directive on the Conservation of Natural habitats and of Wild Fauna and Flora [92/43/EEC] (the Habitat Directive), and the 1994 regulations, paragraphs 12 to 20; the history of the application for a regulation 44 licence, paragraphs 21 to 27; the correspondence leading up to the decision paragraphs 28 to 42; the submissions by consultees paragraphs 43 to 49; relevant passages of the decision letter of 14 th February 2003 paragraphs 50 and 51and passages in the post decision correspondence paragraphs 52 to 53. I do not repeat those parts but simply incorporate them as part of this judgment.
In the decision letter it is common ground the Assembly simply concentrated on whether there was a present need for the quarrying of chert and limestone, indicating that there was in reality no issue that there was "currently sufficient production capacity and permitted reserves to meet local and regional demand" and that this was in line with the trustees view since they "had no immediate plan to reopen the quarry". The submission for a licence was (the letter records) being made to safeguard the planning permission and the value of the Estate's interest in the quarries. The letter indicated that the situation might change in the future making the site a relatively desirable source for aggregates, but stated:-
"This was insufficient to demonstrate an overriding public interest now or within the timescale required to relocate the newts. If the situation in relation to overriding need for the quarry products were to change at some time in the future it would be open to [the trustees] to make a new application for a licence…."
The complaint of the trustees, as ultimately identified following the correspondence after the decision, was that in the decision letter the assembly had ignored the existence of a valid planning permission; ignored the likelihood that in carrying out the authorised works which would unavoidably damage the gcns they (as the trustees contended) might be acting lawfully by virtue of regulation 40(3) (c) ; and had failed to have regard to the issue whether preservation provided a reason of overriding public interest. They further submitted that it could not be right to postpone matters until circumstances altered because it was important to take time to relocate the gcns.
The Assembly's position was that the existence of the planning permission was relevant but not determinative of whether a licence should be granted; it was not for them to decide whether, if the trustees chose to quarry and thereby damage the gcns, they would be committing an offence (but they did not accept that they would not be) ; and the preservation of the species which the regulations were designed to safeguard could not be "an imperative reason of overriding public interest" within regulation 44(2) (e) .
It was these issues to which submissions were made to the judge as recorded by him in paragraphs 55 to 63 so far as Mr Kingston for the trustees is concerned, and in paragraphs 64 to 75 so far as Mr Jarman for the Assembly is concerned. Those submissions were essentially repeated before us, and it is thus not necessary to rehearse them.
The key issue, albeit much background may be traversed to provide the context, is one of construction of regulation 44(2) (e), and whether the preservation of the species which the regulations are designed to protect can itself provide "an imperative reason of overriding public interest". I do not myself think that the question whether the trustees if they chose to quarry will be committing an offence is a question which needs to be answered, or indeed should be answered. It is sufficient, and no one I think would dispute this, that it is certainly arguable that the circumstances may be such that they might not be committing an offence, and it is certainly possible that the Trustees will act in accordance with the planning permission, whether or not they obtain a licence to relocate the gcns. Thus there is a risk that operations will take place which will kill gcns and damage or destroy the breeding site of gcns.
What the Trustees appear to be seeking to do is to "conserve" the gcns which are at present in the location where they wish to quarry. If they are to relocate them before they carry out any works which might incidentally damage the gcns or the breeding site, they wish deliberately to capture, and deliberately to disturb the gcns and damage or destroy their breeding site or resting place, all offences under regulation 39 unless they have a licence to do so. At first sight one would have thought the Trustees should have been applying for a licence for the purpose of conserving the gcns under regulation 44(2) (c) . That is a licence which under regulation 44(4) it would be for the Countryside Council for Wales (the CCW) to issue. Before issuing they would have to consider whether "there is a satisfactory alternative", and whether "the action authorised will be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their range" [see regulation 44(3) ]. But the question whether it was necessary to start quarrying having regard to production elsewhere may not be a material consideration. The judge said at paragraph 104:-
"Mr Jarman accepts that an application for this licence could have been appropriately addressed to the Countryside Council for Wales under regulation 44(2) (c) . What then would have been material considerations for the Council? The claimants would be seeking a licence to conserve a protected species because, in light of the planning permission, it is likely the species would otherwise be harmed. If Mr Jarman's argument is sound the Council would be entitled to refuse the application simply on the ground...
To continue reading
Request your trial
-
Decision Nº LCA 59 2009. Upper Tribunal (Lands Chamber), 19-07-2011
...this decision: Bond and Others v Dorset County Council [2011] RVR 119 R (on the application of JHM Newsum) v Welsh Assembly Government [2004] EWCA Civ 1565 Commission v United Kingdom (case C-6/04) [2006] Env LR 29 Morge v Hampshire County Council [2011] UKSC 2 The following case was referr......
-
The Queen (on the Application of Peter Evans) v Basingstoke and Deane Borough Council Victacress Salads Ltd (Interested Party)
...implicit in the judgment of Auld LJ in Noble and in the decision of Sullivan J in R (on the application of Hardy v Pembrokeshire CC [2005] Env. L.R.16 in the passage I quote below in which he followed the Court of Appeal in 399 It is also in my view implicit in the decision of the ECJ in Ca......