R (Newsum and Others) v Welsh Assembly Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pitchford |
| Judgment Date | 04 February 2004 |
| Neutral Citation | [2004] EWHC 50 (Admin) |
| Date | 04 February 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1872/03 |
[2004] EWHC 50 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT CARDIFF
Civil Justice Centre
2 Park Street
CARDIFF CF10 1ET
The Honourable Mr Justice Pitchford
Case No: CO/1872/03
Martin Kingston QC and David Park (instructed by Bremners) for the Claimants
Milwyn Jarman QC and Andrew Keyser (instructed by Treasury Solicitor) for the Defendant
Background to Claim
The claimants, the trustees of the estate of the Duke of Westminster, seek review of a decision of the defendant, the Welsh Assembly Government, of 14 February 2003 refusing the claimants' application for a licence under regulation 44(2)(e) Conservation (Natural Habitats etc) Regulations 1994. The claimants sought and were refused a licence to 'translocate' a population of great crested newts from a quarry to a specially prepared site in the same region. Permission to proceed was granted by the single judge on 23 May 2003. The claim raises issues of construction and the proper application of regulation 44(2)(e).
The origin of the claim is as follows.
The claimant trustees are the freehold owner of the greater part of Halkyn Common in Flintshire, some 2.5 kilometres to the south of Holywell. Over the common there are rights of pasture, freestone, turbary and estover. Situated within the Common is Pen-yr-Henblas Quarry (hereafter called Pen-yr-Henblas, the quarry or the donor site). The quarry has in the past been a source of chertstone and limestone. The claimants wish to resume quarrying at Pen-yr-Henblas. Over the relevant part of the donor site the claimant owns the mineral rights subject to rights of common. The claimants are also the freehold owner of Wern-y-Gaer some 4.4 kilometres to the south east (the receptor site) subject to mineral rights in favour of the Crown and rights of common.
Pen-yr-Henblas has the benefit of planning permissions of 30 March 1954 and 12 August 1966 granting permission for quarrying subject to conditions.
On 26 January 1996 Clwyd County Council gave notice under paragraphs 3 and 8, Schedule 13 to the Environment Act 1995 listing Pen-yr-Henblas as an 'active Phase 1' site. The purpose of Schedule 13 was to enable a scheme of review of old mining permissions ('ROMP') granted after 30 June 1948 and, in the main, before 21 February 1982. An obligation was imposed by paragraph 9 upon the owner to make application to the mineral planning authority for the imposition of modern conditions to which the permission would be subject. If the owner failed to make application in time the planning permission would lapse (paragraph 12).
The claimant made application in due time and submitted conditions to Flintshire County Council. At paragraph 4.8 the claimant proposed:
"Ecology-Due to the ecological interest in the site, it is proposed that no working of the site will take place until a scheme for the dealing with the various ecological issues has been approved by the Mineral Planning Authority. Any scheme dealing with ecological issues will be designed in consultation with the Countryside Council for Wales."
On 13 November 1998 the Council required, under paragraph 9(10) of Schedule 13, further details of the proposal. In particular, the Council required sight of ecological and geological surveys. No further information has been provided and no further discussion has taken place. Accordingly, the period of 3 months within which the Council was required to notify its decision is held in abeyance until the information is provided (paragraph 9(9) and (10)). This does not prevent the Council, notwithstanding the absence of such information, and subject to appeal, imposing conditions to which the permission should henceforward be subject (paragraphs 9(6) and (7), 10 and 11). Ministerial guidance upon the application of paragraph 9 has been issued under MPG 14.
In the preamble to their proposals the claimants represented:
"1.5 The intention of the Estate not to re-open the quarry in the immediate future is also reinforced by the fact that Pen-yr-Henblas Quarry has been identified as having a significant population of Great Crested Newts. The Newts and their habitat are protected under the Wildlife and Countryside Act 1981 and the European Union's Habitat and Species Directive as implemented by the Conservation (Natural Habitat and Conservation) Regulations 1994.
1.6 The legislation makes it a criminal offence to harm the Great Crested Newt or its habitat. Any proposed operations within the quarry will undoubtedly come under intense scrutiny from the Countryside Council for Wales and will require a licence to be issued by them to ensure that the operators comply with the legislation. Consequently it is proposed that no working will take place on site until a scheme for dealing with the Newts and their habitat is agreed with the Countryside Council for Wales."
On the application of the claimant under section 192 Town and Country Planning Act 1990 Flintshire County Council, on 14 October 2002, issued a certificate of lawfulness in respect of Pen-yr-Henblas, and an adjacent site with which I am not concerned for present purposes, in the following relevant terms:
"Flintshire County Council…hereby certifies that on 30 th July 2002…the operations described in the First Schedule to this Certificate in respect of [Pen yr Henblas]…would have been lawful within the meaning of Section 192 of the Town and Country Planning Act 1990 (as amended)…
FIRST SCHEDULE
The extraction by quarrying, working and processing of
(a) stone of all kinds including (without limitation) limestone, chert, mudstone and sandstone;
(b) …
(c) …
pursuant to planning permissions…dated 30 March 1954…and 12 August 1966…"
Note 6 attached to the certificate read:
"The Land contains a substantial breeding population of Great Crested Newts, a protected species under the European Habitats Directive. An application to the National Assembly to translocate the newts will need to be approved before any mineral extraction can be carried out on the Land."
The Note consists of advice to the holder of the certificate. It is the claimants' case that while they made application for a licence to translocate the newt population of the quarry, as a matter of law they were not bound to receive a licence or to move the newts before quarrying operations could begin.
It follows from the issue of the certificate that, subject to any other impediment under statute or common law, the claimants were free to exercise their right to quarry Pen-y-Henblas. They were free to do so, it is conceded by the defendant, notwithstanding Flintshire County Council had not yet made a decision whether to impose planning conditions under Schedule 13 to the 1995 Act.
The Habitat Directive and 1994 Regulations
This brings me to the European Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora [92/43/EEC].
In the old quarry workings at Pen-yr-Henblas water has accumulated and over time provided a habitat for animal life, including the great crested newt. The colonisation has taken place over about 20 years until by about 2002 the numbers were estimated at 200 plus.
The claimants wish in due course to resume quarrying at Pen-yr-Henblas.
The Habitat Directive Article 12 required member states to take measures to "establish a system of strict protection for the animal species listed in Annex IV" of which the great crested newt is one.
The United Kingdom's response to the Directive was the Conservation (Natural Habitats etc) Regulations 1994. The great crested newt is protected by the Directive and by regulation 38 and Schedule 2.
Regulation 39(1) reads:
"It is an offence-
(a) deliberately to capture or kill a wild animal of a European protected species;
(b) deliberately to disturb any such animal;
(c) deliberately to take or destroy the eggs of such an animal; or
(d) to damage or destroy a breeding site or resting place of such an animal."
It is to be noted that an offence under Regulation 39(1)(d) may be committed whether the damage or destruction was deliberate or not.
Regulation 40 grants various statutory defences. For present purposes, including the construction of regulation 40(3)(c), I shall recite the following:
"(2) Nothing in regulation 39(1)(b) or (d) shall make unlawful anything done within a dwelling house.
(3) Notwithstanding anything in regulation 39 a person shall not be guilty of an offence by reason of-
(a) the taking of a wild animal of a European protected species if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;
(b) the killing of such an animal if he shows that the animal has been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or
(c) 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.
(4) A person shall not be entitled to rely on the defence provided by paragraph ( 2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling house unless he had notified the appropriate nature conservation body of the proposed action or operation and allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to...
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