The Royal Society for the Protection of Birds v The Secretary of State for Environment Food and Rural Affairs BAE Systems (Operations) Ltd (1st Interested Party) Natural England (2nd Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Mitting
Judgment Date21 May 2014
Neutral Citation[2014] EWHC 1645 (Admin)
Docket NumberCase No: CO/12012/2013

[2014] EWHC 1645 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Mitting

Case No: CO/12012/2013

Between:
The Royal Society for the Protection of Birds
Claimant
and
The Secretary of State for Environment Food and Rural Affairs
Defendant

and

BAE Systems (Operations) Ltd
1st Interested Party

and

Natural England
2nd Interested Party

Mr David Forsdick QC (instructed by THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS) for the Claimant

Mr Stephen Tromans QC AND Mr Colin Thomann (instructed by THE TREASURY SOLICITOR) for the Defendant

Mr Craig Howell Williams QC AND Mr Ned Westaway (instructed by ADDLESHAW GODDARD LLP) for the 1st Interested Party

Hearing dates: 13 & 14 May 2014

Mr Justice Mitting
1

The River Ribble rises in Yorkshire and flows into the Irish Sea between Lytham St Annes and Southport. The River Alt rises in Huyton and flows into the Irish Sea at the edge of the Mersey Estuary. Part of the Ribble Estuary was identified as a National Nature Reserve in 1979 and notified as a Site of Special Scientific Interest under Section 28 of the Wildlife and Countryside Act 1981 in 1984. It was classified as special protection area under Council Directive 79/409/EEC in 1982. The Alt River Estuary was similarly classified in 1985. The two estuaries were jointly classified as a special protection area in February 1995. It was re-designated and its area extended on 28 November 2002. It now comprises 12,412.31 hectares. It is a habitat for a large number of different species of bird. Amongst them are two large gulls: the Lesser Black-backed Gull and the Herring Gull. This case concerns only those gulls and that part of the special protection area which lies within the Ribble Estuary. Both gulls breed there. A reasonable working estimate of the numbers of breeding pairs in the Ribble Estuary in recent years is 4,100 pairs of Lesser Black-backed Gull and, until the recent cull, 500 pairs of Herring Gull. They nest in an extensive area of sand mud flats and saltmarsh on the left, south, bank of the Ribble.

2

On the right bank of the Ribble, to the north and east of that area is the aerodrome and manufacturing and research facility operated by BAE Systems (Operations) Limited ("British Aerospace") at Warton. British Aerospace and its predecessors have occupied the site since 1947. It is their principal UK facility for developing, manufacturing and testing military aircraft. Bird strike is an unavoidable occurrence. Small birds do not cause significant damage to aircraft; but large birds – those weighing more than 1kg – can do. The principal risk is that of ingestion into an aircraft jet engine. In the case of a single-engined aircraft, such as a Hawk, ingestion can lead to sudden total loss of power, requiring the pilot to eject and the aircraft to crash. The risk has been measured statistically. At Warton the annual frequency of the risk of damage to an aircraft sufficient to cause loss of service for a period of weeks has been assessed at 1 in 12.5 years and of aircraft loss associated with pilot ejection at 1 in 808 years. There is a national standard for yet more catastrophic loss, causing pilot fatality. That is set by the Health and Safety Executive at 1 in 1 million years. At Warton the risk is assessed at 1 in 30,000 years. A significant proportion of the Lesser Black-backed and Herring Gulls weigh more than 1kg. British Aerospace contends, without opposition from any source, that the two gulls are the primary cause of the risks identified above.

3

In an attempt to mitigate that risk, British Aerospace has sought consent for the culling of 1,700 pairs of Lesser Black-backed Gull and 500 pairs of Herring Gull on the Ribble Estuary site and the taking of measures to keep the numbers at the level produced by the cull. To do so British Aerospace required the written consent of Natural England under Section 28E Wildlife and Countryside Act 1981 or, if consent was not given, a direction by the Secretary of State for the Environment Food and Rural Affairs to Natural England following an appeal under Section 28F. Natural England consented to the culling of 200 pairs of Lesser Black-backed Gull and 25 pairs of Herring Gull, but refused to consent to the balance of the cull. British Aerospace appealed to the Secretary of State against that refusal. The Secretary of State appointed Edward A. Simpson to conduct a public inquiry into British Aerospace's notification. By a report dated 21 February 2012, Mr. Simpson recommended to the Secretary of State that he should direct Natural England to give consent to the full cull and subsequent control mechanisms. By a decision notified by a letter dated 12 December 2012, the Secretary of State directed Natural England to give consent to the culling of 475 pairs of Herring Gull (i.e. the balance left after the cull of 25 pairs permitted by Natural England). In a separate letter of the same date, he indicated that he was minded to direct Natural England to consent to a cull of a further 552 pairs of Lesser Black-backed Gull, but to affirm Natural England's decision as to the remainder of the cull – 948 pairs. He invited representations from all interested parties. By a decision notified by a letter dated 29 May 2013, he directed Natural England to give consent for the culling of 552 pairs of Lesser Black-backed Gull and further operations to maintain the population at a reduced level, provided that it did not fall below 3,348 pairs. By the date of this letter, the cull of 500 pairs of Herring Gull had been completed. The Secretary of State also directed Natural England to consent to further operations to maintain the population levels of Herring Gull at the reduced level.

4

By this claim, the claimant, The Royal Society for the Protection of Birds, challenges both of the decisions of the Secretary of State. The grounds of challenge are manifold, but at their heart assert that the Secretary of State was not, as a matter of law, entitled to direct Natural England to give consent to the culling of 552 pairs of Lesser Black-backed Gull.

5

A rational system of law ought to provide a readily understandable means of reconciling the competing claims of the conservation of species of birds with those of a facility for the development, manufacture and testing of military aircraft; or, if reconciliation is not possible, of determining which should have priority. Unfortunately the law is complex and opaque. Unsurprisingly, it has generated a large number of lengthy and detailed documents in which the parties' submissions have been advanced and analysed. The inspector's report runs to 126 pages and the Secretary of State's principal decision letter to 44. The skeleton arguments of the parties in these proceedings run to 45, 45 and 49 pages respectively. My analysis of the decision of the Secretary of State must inevitably be preceded by an extensive review of the law, in an attempt to discern what it is.

6

The starting point is Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds ("the Wild Birds Directive"). Recital 1 notes that the original Wild Birds Directive – 79/409/EEC – has been substantially amended several times and states that it should be codified "in the interests of clarity and rationality". It fails to achieve that aim. The recitals do, however, set the scene. Recital (3) notes that "a large number of species of wild birds naturally occurring in the European territory of the Member States are declining in number" and that that decline represents a serious threat to the conservation of the natural environment. Recital (8) states,

"The preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. Certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution. Such measures must also take account of migratory species and be co-ordinated with a view to setting up a coherent whole."

For present purposes, this is the most important of the recitals.

7

Article 1 defines the scope of the Directive: it relates to "conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States".

8

Article 2 imposes a general obligation on Member States in relation to all species of naturally occurring birds in the wild state. Unfortunately the language of Article 2 is obscure. It reads,

"Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level".

The Article stipulates a level of population of the species by reference to factors without making it possible to discern what the level should be. The most that can be gleaned is that there should be a level and that it should allow for what in the United Kingdom is called shooting and in continental Europe hunting.

9

Articles 5 – 9 deal with the protection of wild birds generally. Article 5 requires Member States to take requisite measures, "to establish a general system of protection for all species of birds referred to in Article 1." In particular, deliberate killing or capture by any method is prohibited. Article 7, however, permits hunting under...

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