Timothy Charles Harris and Mrs. Angelika Harris v Broads Authority
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 12 April 2016 |
| Neutral Citation | [2016] EWHC 799 (Admin) |
| Docket Number | Case No: CO/1866/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2016 |
The Queen on the application of:
[2016] EWHC 799 (Admin)
Mr Justice Holgate
Case No: CO/1866/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregory Jones QC and Charles Streeten (instructed by Nabarro LLP) for the Claimants
Nigel Giffin QC and Christopher Knight (instructed by NPLaw) for the Defendant
Hearing dates: 10 and 11 February 2016
Introduction
"The Broads comprise over 300 square kilometres of wetland landscapes in east Norfolk and Suffolk. The Broads Authority [("the Authority") and the Defendant here], describes it as "the UK's largest protected wetland and boast[ing] a quarter of its rarest species. The broad, shallow lakes are man-made rather than natural. They began as pits dug for peat to provide fuel during medieval times. Over the centuries water levels rose, the peat diggings became flooded and by the 14 th Century they were abandoned." The special characteristics of the Broads, as summarised from the Broads Plan 2011, are the wide, open landscape, the winding waterways, the big skies, the abundance and diversity of nature, the sense of space, tranquillity and wildness, the local character of beautiful churches, windmills and quiet villages, and the opportunities for boating and sailing." (per Cranston J at paragraph 37 of Howell v Secretary of State Communities and Local Government [2014] EWHC 3627 (Admin)).
The Claimants say this case raises an important legal issue. "Can a public body which in law is not a National Park, represent itself (and allow itself to be represented) as a National Park and thereby to enjoy the benefits of National Park status despite the fact that that authority has decided to cease to seek to become a National Park inter alia because it does not wish to be subject to the legal duties imposed on National Parks and National Park Authorities?" On the Claimants' renewed application permission to apply for judicial review was granted by Singh J (see his order dated 12 August 2015).
The Authority was constituted under the Norfolk and Suffolk Broads Act 1988 ("the 1988 Act") and has a general duty "to manage the Broads for the purposes of –
(a) conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads;
(b) promoting opportunities for the understanding and enjoyment of the special qualities of the Broads by the public; and
(c) protecting the interests of navigation."
The Authority is also the local planning authority for the area and a harbour and navigation authority. However, the Broads is not a National Park designated under the National Parks and Access to the Countryside Act 1949 ("the 1949 Act"), nor is the Authority a National Park Authority under that statute. Nevertheless, for many years it has been treated as forming part of the "family" of National Parks. The claim for judicial review challenges a resolution of the Authority passed on 23 January 2015 by which the Authority decided inter alia "that the brand "Broads National Park" be adopted for marketing related purposes…".
The Claimants live within the area of the Authority. For over 7 years they have been campaigning to protect Catfield Fen within the Broads, a site of international conservation significance and of which they own a large part, against harmful effects arising from water abstraction. In paragraph 3 of his witness statement, Mr. Harris states "my main concern is to conserve the bio-diversity and the environmental value of the Broads Area for future generations; hence my campaigning for the Defendant to either fully become a National Park or, at the very least, to confirm its application of the "Sandford Principle". If it is not doing this, then it should not hold itself out as a National Park and hence why I am seeking relief through the court in these proceedings."
The Sandford Principle derives from a Report of the National Park Policies Review Committee chaired by Lord Sandford and published in 1974. Paragraph 2.15 of the Report stated:-
"The first purpose of national parks, as stated by Dower and by Parliament — the preservation and enhancement of natural beauty — seems to us to remain entirely valid and appropriate. The second purpose — the promotion of public enjoyment — however, needs to be re-interpreted and qualified because it is now evident that excessive or unsuitable use may destroy the very qualities that attract people to the parks. We have no doubt that where the conflict between the two purposes, which has always been inherent, becomes acute, the first one must prevail in order that the beauty and ecological qualities of the national parks may be maintained."
The effect of section 11A(2) of the 1949 Act, inserted by section 62 of the Environment Act 1995 some 25 years after the Sandford Report, is that where there is a conflict between on the one hand "conserving and enhancing the natural beauty, wildlife and cultural heritage of" a National Park and on the other "promoting opportunities for the understanding and enjoyment of the special qualities of [a National Park] by the public" then greater weight must be given to the former purpose. The Claimants submit that within National Parks the conservation objective is always "uppermost". In paragraph 6 of his witness statement Mr. Harris says that "The "Sandford Principle" is the fundamental distinguishing characteristic of all National Parks and all National Park Authorities, and gives priority to the purpose of nature conservation over other purposes, such as tourism."
The Claimants submit that the Authority's resolution was unlawful because:-
Ground 1
(a) It was not within the scope of section 111 of the Local Government Act 1972. That provision does not grant a power to make a decision incompatible with the statutory code imposed by the 1949 Act; and/or
(b) The Authority's discretion to exercise the power granted by section 111 is not unfettered. The Authority's decision was unlawful by failing to uphold "the highest standards of public administration" or was otherwise an abuse of power; and/or
(c) The decision was irrational. It makes no sense to purport to take the benefit of re-branding as a "National Park" whilst at the same time resolving not to pursue the legal status of a National Park.
Ground 2
The Authority had regard to an immaterial consideration, namely that "the Habitats Regulations provide a required level of protection for the bio-diversity of the Broads against damaging activities".
Ground 3
The Authority's decision was procedurally unfair in that the consultation it undertook was misleading and/or was undertaken regarding a question that did not reflect the decision taken.
The Statutory Framework
The genesis of the National Parks in Britain goes back at least as far as a report by Mr. John Dower to the Minister of Town and Country Planning in April 1945 (National Parks in England and Wales — Cmd 6628). That report provided the foundation for the detailed proposals subsequently prepared by the Hobhouse Committee which reported in 1947 (Report of the National Parks Committee — Cmd 7121). Dower put forward the following definition of a national park in Great Britain:-
"A National Park is an extensive area of beautiful and relatively wild country in which, for the nation's benefit and by appropriate national decision and action, (a) the characteristic landscape beauty is strictly preserved, (b) access and facilities for public open-air enjoyment are amply provided, (c) wildlife and buildings and places of architectural and historic interest are suitably protected, while (d) established farming use is effectively maintained."
Parliament endorsed this concept of a National Park in England and Wales in the 1949 Act". Twelve National Parks have been designated in England and Wales. A similar concept was introduced for Scotland by the National Parks (Scotland) Act 2000. Two National Parks have been statutorily designated in Scotland, first the Cairngorms and second Loch Lomond and the Trossachs.
Section 5(1) of the 1949 Act defines the purposes of the designation of a National Park:-
"(1) The provisions of this Part of this Act shall have effect for the purpose –
(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and
(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
(2) The said areas are those extensive tracts of country in England … as to which it appears to Natural England that by reason of —
(a) their natural beauty, and
(b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,
it is especially desirable that the necessary measures shall be taken for the purposes mentioned in the last foregoing subsection."
Section 5(3) provides that the areas designated in accordance with section 7 are to be known as "National Parks".
Section 6(1) imposes an ongoing duty on Natural England to consider whether to designate additional areas as National Parks. Designation is subject to the specific statutory procedures set out in section 7 and schedule 1. Subject to inter alia complying with the requirement for prior consultation with authorities in whose area a National Park is to be created, Natural England may make an order designating a...
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