The Royal Society for the Protection of Birds v The Secretary of State for Environment Food and Rural Affairs Bae Systems (Operations) Ltd (First Interested Party) Natural England (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Sales,Lord Justice Jackson |
| Judgment Date | 18 March 2015 |
| Neutral Citation | [2015] EWCA Civ 227 |
| Docket Number | Case No: C1/2014/1872 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2015 |
[2015] EWCA Civ 227
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO/1202/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Sullivan
and
Lord Justice Sales
Case No: C1/2014/1872
and
and
David Forsdick QC (instructed by The Royal Society for the Protection of Birds) for the Appellant
Stephen Tromans QC and Colin Thomann (instructed by Treasury Solicitors) for the Respondent
Craig Howell Williams QC and Ned Westaway (instructed by Addleshaw Goddard Solicitors) for the First Interested Party
The Second Interested Party did not appear and was not represented.
Hearing dates: 3 rd and 4 th March 2015
Introduction
This is an appeal against the Order dated 21 st May 2014 of Mitting J dismissing the RSPB's claim for judicial review of the decision of the Secretary of State for the Environment, Food and Rural Affairs ("the Secretary of State") dated 29 th May 2013 to direct Natural England under section 28F (5) of the Wildlife and Countryside Act 1981 ("the 1981 Act") to give BAE Systems (Operations) Ltd ("BAES") consent for:
(1) the culling of 552 pairs of Lesser Black-Backed Gulls ("LBBG") and further operations to maintain the population at the reduced level following the cull, provided that the population so reduced is no lower than 3,348 pairs; and
(2) further measures to maintain the population of Herring Gulls ("HG") at the population level following an earlier cull.
For convenience, I will refer to (1) and (2) as "the cull".
Background
The background to the RSPB's Claim is helpfully summarised in paragraphs 1–4 of Mitting J's judgment [2014] EWHC 1645 (Admin):
"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."
It is common ground that when deciding whether to grant consent for the cull the Secretary of State had to comply with the obligations imposed by paragraphs 2–4 of Article 6 of the Habitats Directive. Those obligations are as follows:
"2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted."
The Issue
The Secretary of State concluded that the cull would not adversely affect the integrity of the SPA: see Article 6(3). The RSPB contends that this conclusion was unlawful because it was based upon a misinterpretation of the conservation objectives for the populations of LBBG and the breeding seabird assemblage (of which the HG and LBBG are part) at the SPA; that the application of those conservation objectives, properly construed, would have led to the conclusion that the cull would adversely affect...
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