R Thomas Langton v The Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 13 March 2019 |
| Neutral Citation | [2019] EWHC 597 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/4848/2017 & CO/5921/2017 |
| Date | 13 March 2019 |
[2019] EWHC 597 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
(Sitting as a High Court Judge)
Case Nos: CO/4848/2017 & CO/5921/2017
Richard Turney and Ben Fullbrook (instructed by Richard Buxton Solicitors) for the Claimant
Paul Luckhurst and Gayatri Sarathy (instructed by Natural England) for the 2 nd Defendant
Hearing dates: 28 February and 1 March 2019
Approved Judgment
INTRODUCTION
In earlier judicial review proceedings, I dismissed challenges to the Secretary of State's policy of supplementary badger control and to Natural England's grant in 2017 of 2 supplementary and 6 standard badger control licences: R (Langton) v The Secretary of State for Environment, Food and Rural Affairs & Natural England [2018] EWHC 2190 (Admin); [2019] Env LR 9 (“ Langton 1”). In broad terms Natural England was said to have issued the licences in breach of the Conservation of Habitats and Species Regulations 2010, SI 2010 No 490 by failing to carry out appropriate assessments of the impact of issuing the licences on protected bird sites.
Under the court order for Langton 1 the claimant was able to apply for permission to pursue additional grounds which had been adjourned and not considered at the hearing. On 25 September 2018 Whipple J gave permission to the claimant to proceed on these grounds; hence the current proceedings.
What is at issue now is the manner in which Natural England assessed the possible impacts of granting the 8 badger control licences in 2017 on ecological features within Sites of Special Scientific Interest (“SSSI”) lying within the licence areas. There are 45 such SSSIs at issue in these proceedings. (Fourteen of these are constituent parts of Dorset Heathlands Special Protection Area (“SPA”) and/or Poole Harbour SPA). The claimant submits that Natural England's approach to assessment when granting licences was fundamentally flawed in omitting certain species when it was deciding on licence conditions in respect of badger control operations in those 45 SSSIs. That resulted in the licences being granted in breach of its statutory duties.
Adopting what it characterises as an ultra-precautionary approach, Natural England has conceded that it may have fallen down as regards 3 SSSIs. It has amended the conditions attached to the relevant badger control licence. However, it rejects the claimant's case in relation to the other 42 sites. With 25 of these sites it contends that the alleged omissions would not make any difference to the conditions which it decided to impose on the licences; thus the claimant's case in relation to these sites is purely academic.
As in Langton 1 there was detailed evidence from both sides. In this case the evidence canvassed the position regarding the 45 SSSIs and the assessments Natural England conducted for badger control licences issued for the areas in which they lie. For the claimant Mr Dominic Woodfield, the managing director of the ecological consultancy, Bioscan (UK) Ltd, applied to give evidence as he did in Langton 1. Natural England objected to the admission of his witness statement for this hearing.
Concerned with whether his statement introduced new and unpleaded material, and with whether Mr Woodfield was giving opinion rather than expert evidence, Farbey J ordered an oral hearing of the application to admit Mr Woodfield's statement. At a hearing Julian Knowles J ordered that the statement be admitted in as much as the trial judge considered it relevant and useful. I was content those preconditions were met when Mr Turney drew on the statement in the course of his submissions.
For Natural England there were two witness statements from Mr John Finnie, Principal Adviser on terrestrial protected sites in its Strategy Implementation Team. He has led on training and the preparation of guidance on SSSIs in Natural England and for many years has lectured on the subject in the University of London. There were also two statements from Mr Ivan Lakin, an ornithologist specialist at Natural England.
The current proceedings involved detailed consideration of what Natural England had assessed at the 45 SSSIs. This imposed a considerable burden in writing the judgement. In granting permission for the case to proceed, Whipple J had in my view correctly identified the burden the proceedings imposed: “I am very concerned about costs and time and about the fact that this litigation has already had a significant amount of court time allocated to it”: [2018] EWHC 3828 (Admin), [11]. She underlined the need for every effort to be taken to ensure that the case was determined proportionately and without undue fuss or expenditure: [13]. Her order reminded the parties of the need to deal with the claim proportionately.
Whipple J's order contemplated that the pleaded issues in the case would be consolidated into a “Scott Schedule” to make the hearing more manageable. That was done. The schedule is attached to the judgment. The first and second columns identify the SSSI. Column 3 refers to the species said to be omitted from assessment at the site. The parties' pleaded positions on the status of the alleged omissions are set out at column 4 for Natural England and columns 6, 8 and 9 for the claimant. Columns 5 and 7 set out the parties' case on Natural England's no difference cases. The schedule was of considerable value in highlighting the parties' case on each SSSI, although it could not preclude reference to the detailed evidence for each.
At the hearing I emphasised that it was not the court's role to micromanage the actions of Natural England or any other public body. In this context I am conscious that the claimant has new proceedings in the pipeline challenging badger control licences issued in 2018. Consequently what I have done (with the assistance of counsel) is to identify cases which the court need never consider because of the no difference principle. Further, I have enunciated some principles applicable to the interpretation of SSSI citations in identifying the features of special interest at the relevant sites.
During the proceedings I was informed that the parties had attempted ADR; that is clearly a desirable course in this type of case, even if only to winnow out cases which, because they raise issues of principle, demand the court's attention.
Finally, I should note that following the judgment in Langton 1, Natural England produced Guidance on evaluating the ecological consequences of badger culling on European sites, 2018. Assessors are now required to document the reasons that there would be no adverse effect on the integrity of sites outside badger control areas. Any European site within 20km of a licence area must be addressed, even if the conclusion is that there would be no adverse effect on the site. Natural England has also decided to apply a condition to some sites which enables it to require licensees to carry out additional fox control if existing levels are considered insufficient.
There were written submissions from the parties during and following the current hearing about the guidance. In as much as the argument was whether the guidance contains a significantly different approach to what was Natural England's position at the time of Langton I it was not relevant to the issues before me. Otherwise the submissions underlined those already made by the parties at the hearing apart from the guidance.
BACKGROUND
The general character of Natural England's licensing of badger control was described in Langton 1. It is sufficient to note here that licences cover geographical areas and are numbered sequentially according to the date they were initially issued. The first licences were issued in 2012 and further licences have been issued in subsequent years. To date, 32 licences have been issued. Apparently they cover about a tenth of the land surface of England.
When licences are issued conditions may be imposed to protect wildlife, for example, to prohibit shooting in specific areas during the bird breeding season where breeding birds are a feature; to prohibit shooting next to intertidal areas used by large flocks of water birds; and to restrict vehicle movement and trap placement in respect of butterfly and other invertebrate populations.
The system of identifying and protecting areas of scientific interest across the country, SSSIs, began in 1949 with the Nature Conservancy Council, later English Nature, now Natural England. It was placed on a firmer statutory basis under the Wildlife and Countryside Act 1981. In England Natural England can notify land as a SSSI which in its opinion is of special interest by reason of its flora, fauna, geological or physiographical features. It can confirm the notification after considering any representations it receives about the notification. Confirmation leads to the publication of a citation about the site. Land can be notified as an SSSI even in private ownership. An SSSI attracts protection against operations which might potentially damage it, the protective measures varying with the site. Natural England also notifies owners and occupiers of its views on how the site is to be managed. There are some 4000 SSSIs in England.
Citations for SSSI are published on Natural England's website. Modern SSSI citations provide a statement at the beginning of the document of the “Reasons for notification”. In addition there is a “General description” of the site. There are only 2 modern citations among the 45 SSSIs at issue in these proceedings. The remaining 45 are older citations, which do not demarcate by use...
To continue reading
Request your trial
-
R Thomas Langton v Secretary of State for Environment Food and Rural Affairs
...the decision of Sir Ross Cranston in R (Langton) v Secretary of State for Environment, Food and Rural Affairs and Natural England [2019] EWHC 597 (Admin). The Ground of the application 5 When this application was originally brought, permission was refused on every ground by William Davis J......